Finch v. Pacific Reduction & Chemical Mfg. Co.

• Decision Date: 24 March 1925
• Citation: 113 Or. 670,234 P. 296
• Parties: FINCH ET AL. v. PACIFIC REDUCTION & CHEMICAL MFG. CO.
• Court: Oregon Supreme Court

234 P. 296

113 Or. 670

FINCH ET AL. v. PACIFIC REDUCTION & CHEMICAL MFG. CO.

Supreme Court of Oregon

March 24, 1925

Department 2.

Appeal from Circuit Court, Josephine County; F. M. Calkins, Judge.

Action by George W. Finch and another against the Pacific Reduction & Chemical Manufacturing Company, whose true name is Pacific Ore Reducing & Chemical Manufacturing Company. Judgment for plaintiffs. From an order vacating a judgment, plaintiffs appeal. Appeal dismissed.

This action was brought by George W. Finch and R. U. McNutt, who allege that they are mining partners, engaged in mining dealing in ores, minerals, and mineral lands in Josephine county, Or.; that in March, 1921, they delivered to the defendant, Pacific Reduction & Chemical Manufacturing Company, a corporation, at Grants Pass, Or., 9 1/2 tons of gold-bearing ore, for the purpose of having the gold and other precious metal extracted therefrom. They aver that the defendant treated the ores by its milling process, but refused to account to plaintiffs for the values extracted therefrom. They demand judgment in the sum of $2,000. Service of process was made upon one R. A. Dozier, an employee of the defendant, who the sheriff certified was the managing agent for the defendant corporation. Upon motion of the plaintiffs the court, on July 20, 1922, entered an order of default against the defendant, and adjudged that the plaintiffs recover against the defendant the sum of $2,000.

On September 5th, and during the same term of court, the defendant appeared generally and moved that the judgment be vacated, and asked leave to file an answer. The motion was accompanied by a number of affidavits to the effect that R A. Dozier, upon whom process was served, was not president secretary, or other officer or agent of the Pacific Reduction & Chemical Manufacturing Company, and in which the names of such officers of the defendant company were set forth. The affidavits further stated that the defense of the defendant was a meritorious one. The application was taken under consideration, but was carried over until September 11, 1922 the first judicial day of the regular September term of the circuit court of the state of Oregon for Josephine county, on which date the court, basing its ruling upon the facts set forth in the affidavits, ordered the judgment vacated.

The plaintiffs, appealing, assign error involving the right of the court to open the judgment without a showing upon the part of the defendant that it has a meritorious defense, and without tendering an answer to the complaint.

Fred A. Williams, of Salem (Geo. W. Colvig, of Grants Pass, on the brief), for appellants.

V. A. C. Ahlf, of Grants Pass, for respondent.

BROWN, J. (after stating the facts as above).

The plaintiffs assume that the motion and the authority of the court to vacate the judgment were based upon the provisions of section 103, Oregon Laws, whereby the court may, within the time therein limited, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect.

It is true that in this jurisdiction the defendant, on filing a motion to set aside a judgment for the reasons enumerated in section 103, Or. L., is required to show facts constituting a defense on the merits, and he must tender an answer to the merits concurrently with the filing of the motion or application to vacate the judgment. Mayer v. Mayer, 27 Or. 133, 39 P. 1002; Egan v. North American Loan Co., 45 Or. 131, 76 P. 774, 77 P. 392; In re Marks' Estate, 81 Or. 632, 160 P. 540.

The showing made by the defendant's application falls short of that which would warrant the court in granting relief under the provisions of that section of the Code. We find conclusions but no statement of facts showing a defense on the merits. But this is not a proceeding under that section. The defendant is not here by reason of its mistake, inadvertence, surprise, or excusable neglect. According to the finding of the court, it was never in default. Service of process precedes default. The defendant did not voluntarily appear before judgment.

It is a well-established rule of law that relief from a judgment which is void for want of service of process upon the defendant may be had without regard to the time when the judgment was entered, and without the showing of merit or the excuse required by law where jurisdiction has attached. Skjelbred v. Shafer, 15 N.D. 539, 108 N.W. 487, 125 Am. St. Rep. 614.

A case very similar, in point of fact, to the one under consideration, is that of Western Pattern & Manufacturing Co. v. American Metal Shoe Co., 175 Wis. 493, 185 N.W. 535, 20 A. L. R. 264. In that case, the Supreme Court of Wisconsin said:

"It is firmly established in this jurisdiction that where a motion is made in the same case to set aside a judgment void for want of service upon the defendant, no showing in the nature of a meritorious defense is necessary. The judgment is held absolutely void, and the court should expunge it from the record whenever its attention is called to the fact that jurisdiction of the defendant was not acquired by reason of a lack of service of process upon him [citing authorities]. * * * Such a judgment has always been regarded as a mere nullity. It is not a judgment. It is the mere image of a judgment. Its enforcement constitutes a taking of property without due process of law, and will not be tolerated. It was the duty of the trial court to expunge the judgment from the record."

In the case of Ladd & Tilton v. Mason et al., 10 Or. 308, 312, this court, in discussing the question of the rendition of a judgment without acquiring jurisdiction, said:

"The inherent power of the court to set aside and vacate such an entry, made without jurisdiction, at any time afterwards, whether at the same term it is made, or any subsequent term, seems hardly to admit of a serious doubt. Judgments, decrees, or orders made without jurisdiction are not more binding upon the courts that enter them than upon persons sought to be affected by them. Not only may they be vacated to subserve the ends of justice between parties litigant, but it would seem that they might be set aside by the courts upon their own motion, by virtue of their inherent power to correct their own records and free them from extraneous matter."

The doctrine thus announced has been cited by this court with approval in a number of subsequent cases. See Cochran v Baker, 34 Or. 555, 52 P. 520, 56 P. 641; Hoover v. Hoover, 39 Or. 456, 65 P. 796; In re Slate's Estate, 40 Or. 349, 68 P. 399; White v. Ladd, 41 Or. 324, 68...