Erker v. Deichert

• Citation: 222 N.W. 615,57 N.D. 474
• Decision Date: 20 December 1928
• Docket Number: No. 5605.,5605.
• Parties: ERKER et al. v. DEICHERT.
• Court: United States State Supreme Court of North Dakota

57 N.D. 474

222 N.W. 615

ERKER et al.

v.DEICHERT.

No. 5605.

Supreme Court of North Dakota.

Dec. 20, 1928.

Syllabus by the Court.

Where a motion is made in district court to set aside a judgment of that court on the ground there was no personal service of the summons and complaint upon the defendant, and the record contains a proper return showing such personal service, and this is controverted by affidavits tending to show no service, the decision of the district court to the effect there was such service is conclusive upon the parties, in the absence of appeal, and in another action an attack on such judgment for want of such service is a collateral attack.

Where, in an action in the district court, garnishment proceedings are had, and the defendant claims that the disclosure made by the garnishee is such that the court should not have rendered judgment against the garnishee, but the defendant permits judgment to be taken against her and against the garnishee by default, and no appeal is taken from the action of the court in rendering judgment against the garnishee, and the judgments rendered against the defendant and garnishee have become final, and the garnishee has paid the judgment, such judgment is conclusive against the defendant, and cannot be attacked in another action.

Appeal from District Court, Grant County; H. L. Berry, Judge.

Action by Max P. Erker and another against Martin Deichert. Judgment for defendant, and plaintiffs appeal. Affirmed.Kelsch & Higgins, of Mandan, for appellants.

Edw. S. Johnson, of Carson, and Scott Cameron, of Bismarck, for respondent.

BURR, J.

This is an action to compel the return of a warranty deed for cancellation, and to cancel the record thereof. The plaintiffs are husband and wife, and on and prior to June 6, 1926, were occupying the southwest quarter of section 12 in township 132 north of range 86, owned by Franciska Erker, as their homestead, and one Rausch was the owner of the northwest quarter of the same section.

On June 6, 1926, the plaintiff Max Erker sold both quarters to the defendant. The defendant was to make a part payment in cash; the plaintiffs and Rausch were to execute warranty deeds and deposit them in the bank of which Rausch was an officer, to be delivered to the defendant upon the full payment of the purchase price into the bank. Franciska Erker never dealt personally with the defendant, though the latter knew she was the owner of the land; but the warranty deeds were deposited with the bank as agreed, and all further transactions were had between the defendant and Rausch. The defendant went to the bank and secured from Rausch the possession of the deeds, without payment of the purchase price, upon the pretext that it was necessary for him to have the instruments in hand for the purpose of checking the title and seeing that a good title was being furnished, and thus a temporary loan of the deeds was made by Rausch, the defendant signing a receipt to the same effect.

The plaintiffs owed one Steen upon a promissory note for $1,012, executed by both of them to Steen, and on September 18, 1926, Steen commenced an action against them making this defendant garnishee. A constable made affidavit that he served the papers personally upon each of the defendants and the garnishee, and left with each of them true and accurate copies of all of the papers, enumerating them. Shortly afterwards the defendant paid to the bank part of the purchase price for the two quarters, but on demand of Rausch refused to return the deeds. On October 5th the Erkers removed from their homestead and gave possession to the defendant. Thus, at the time the plaintiffs moved off the land, the defendant was still owing part of the purchase price for the land he had bought from them.

On the 20th of October, Deichert, as garnishee in the Steen action, made a disclosure to the effect that he had bought some land in accordance with a certain contract, and had paid Max Erker thereon, and was to pay liens and existing claims against the land of about $4,400; that one quarter was owned by Franciska Erker and the other by Rausch; that he had secured deeds from both parties conveying the land to him; that as soon as an abstract showed clear title he would be “indebted to Max P. Erker in the sum of approximately $2,300; that affiant (Deichert) was to have possession of the premises on September 1, 1926, but same has not yet been delivered to him, and that he expects to claim as an offset to said claim for said balance of $2,300 such sums as he shall be damaged by reason of his not securing possession on September 1, 1926; he has no way of determining said damages until final consummation of the transaction.” He attached a copy of his contract to this disclosure.

The Erkers did not appear in the Steen action, nor take issue on the disclosure made by Deichert, as garnishee. Consequently, on or about October 29, 1926, the district court entered judgment against them and Deichert for $1,325.50. The following day the defendant had the deeds recorded, though Rausch had instructed the defendant to return them, and not record them until the purchase price was paid in full. On the 4th of November the defendant in this action paid into the bank the sum of $974.50 as payment on the land, leaving due and owing from him on the land the amount of the judgment which was rendered him as garnishee-$1,325.50-and on the 5th day of November he gave his check to the clerk of the district court for this amount, to satisfy the judgment that was rendered against him as garnishee, and received a satisfaction of the judgment. The bank refused to honor the check.

On the 3d of December, counsel for the Erkers served notice upon the garnishee that the judgment against him was null and void, and that, if he paid the same, the Erkers would sue him for the amount. This notice was based on the theory that the district court had no jurisdiction or authority to make the order of judgment against the garnishee, that no service of the papers in the Steen action had ever been made upon Franciska Erker, and that the amount due her on the land was exempt from garnishment. The notice further stated that proceedings had been commenced to set aside the order for judgment and any judgment that was entered. Thereafter the counsel for Steen had the satisfaction of the judgment canceled, obtained a second order for judgment against both the Erkers and the defendant herein as garnishee, and judgment was duly entered thereon.

On the 19th day of January, the Erkers served upon the defendant another notice, directing him not to pay the garnishment judgment, but Deichert ignored this, and on April 6, 1927, paid the amount of the garnishment judgment into court.

In December, 1926, the defendant Franciska Erker made a motion in the district court to set aside the judgment in the Steen case, on the ground there was no personal service of the summons and complaint made upon her. In support of this motion she filed affidavits to the effect that the constable who made the return of service never served the papers upon her personally; that he was at the residence of herself and her husband while both were present, and left a bundle of papers there, stating in effect, “I have some papers for you;” that these were handed to and left with her husband; that the constable did not explain what the papers were, and left no instructions with reference to them; that her husband did not hand her any copies of the papers; that she did not know she was a party to the action until after the judgment was rendered against her. On this motion the court had the affidavit of service and these affidavits before it, passed upon the motion, and refused to set the judgment aside.

In February, 1927, the Erkers made a motion in the Steen action for stay of...