Glickman v. Solomon

• Decision Date: 12 July 1932
• Citation: 12 P.2d 1017,140 Or. 358
• Parties: GLICKMAN v. SOLOMON. [*]
• Court: Oregon Supreme Court

12 P.2d 1017

140 Or. 358

GLICKMAN v. SOLOMON. ^[*]

Supreme Court of Oregon

July 12, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by M. Glickman against J. Solomon. Judgment for the plaintiff, and the defendant appeals.

Reversed and cause remanded with directions.

Leo Levenson and Gus J. Solomon, both of Portland (Jaureguy &amp Tooze, of Portland, on the brief), for appellant.

Samuel B. Weinstein, of Portland (Barnett H. Goldstein, of Portland on the brief), for respondent.

BELT J.

This is an action to recover rental alleged to be due under a written lease. After issue of fact was joined, the cause was submitted to the court without a jury. The court, without making either general or special findings of fact, entered judgment in favor of plaintiff for the sum of $600. Defendant appeals.

Both parties concede that the judgment should be reversed by reason of the failure of the court to make findings of fact in compliance with the mandatory provisions of section 2-502, Oregon Code 1930. The sole controversy is whether the judgment is void or voidable. The determination of this question is important in that it settles whether the judgment affords a basis for the plea of res adjudicata in Solomon v. Glickman (Or.) 12 P.2d 1018, this day decided on appeal. Glickman asserts that the judgment is void and, therefore, res adjudicata does not apply. Solomon contends that the judgment is merely voidable and, therefore cannot be attacked collaterally.

This court has repeatedly held that, in an action at law, findings of fact by the court without a jury are essential as a foundation for the judgment and the failure to make the same renders the judgment void. It was first held in Frederick & Nelson v. Bard, 66 Or. 259, 134 P. 318, 319, on the authority of Moody v. Richards, 29 Or. 282, 45 P. 777, that such a judgment "had no foundation and was consequently void." An examination of the Moody Case, however, discloses the necessity of findings as a foundation for the judgment, but it was not held therein that the absence of such findings rendered the judgment void. Clackamas Southern Ry. Co. v. Vick, 72 Or. 580, 144 P. 84, followed announcing the above rule and citing, in support thereof, Frederick & Nelson v. Bard, supra. School District No. 30 v. Alameda Construction Co., 87 Or. 132, 169 P. 507, 788, reiterated the rule and cited Clackamas Southern Ry. Co. v. Vick, supra. After the statute was amended requiring the court to make either general or special findings, it was again held in School District No. 106 v. New Amsterdam Casualty Co., 132 Or. 673, 288 P. 196, 197, that "upon the failure of the court to make such findings *** the judgment is void." The writer, speaking for the court in Du Mond v. Byron Jackson Co. (Or.) 6 P. (2d) 1096, decided January 19, 1932, adhered to the previous decisions of this court declaring such a judgment to be void. A careful analysis of the above cases, however, shows that each involved a direct attack on the judgment in question, and the legal effect of a void judgment, as distinguished from one which is merely voidable, was not considered.

In view of the long line of decisions of this court declaring that a judgment is void in the absence of any findings of fact, the writer is reluctant to depart therefrom, but feels that no apology need be offered for so doing if the rule is not in keeping with well-established legal principles. No rule of property is involved. Reverence for precedent alone should not impel this court to continue to adhere to the rule that such a judgment is void. Precedent must be given due consideration but it should never be permitted to preclude the exercise of judgment. When reason and logic become slaves to precedent, then law will cease to be a progressive science.

Without doubt, the court had jurisdiction of the subject-matter and of the parties. Hence it had the power to render a judgment. If the judgment rendered was erroneous, the party whose rights were thereby affected had the remedy of appeal to correct any errors of law or irregularities in practice, but, until the same was reversed, it must be given full force and effect. The rule is thus well stated in 34 C.J. 511: "A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except for fraud in its procurement. Even if the judgment is voidable, that is, so irregular or defective that it would be set aside or annulled on a proper direct application for that purpose, it is well settled as a general rule that it is not subject to collateral impeachment so long as it stands unreversed and in force. On the other hand, a judgment which is absolutely void is entitled to no authority or respect, and therefore may be impeached in collateral proceedings by anyone with whose rights or interests it conflicts." Citing in support thereof numerous cases, among which is that of Schmid v. Portland, 83 Or. 583, 163 P. 1159. Also see Hills et al. v. Pierce et al., 113 Or. 386, 231 P. 652.

To hold that a judgment entered without findings of fact is a nullity and absolutely void is inconsistent with the above well-established principle and finds no...