Gulickson v. Bodkin

• Decision Date: 13 November 1899
• Docket Number: 11,777 - (80)
• Citation: 80 N.W. 783,78 Minn. 33
• Parties: THEODOR GULICKSON v. W. J. BODKIN
• Court: Minnesota Supreme Court

80 N.W. 783

78 Minn. 33

THEODOR GULICKSON v. W. J. BODKIN

Nos. 11,777 - (80)

Supreme Court of Minnesota

November 13, 1899

Action in the district court for Clay county against defendant as sheriff of said county to recover possession of two barrels of whiskey, or the sum of $159.10, the value thereof, in case a delivery could not be had, and $25 damages for the detention. The case was tried before Baxter, J., who directed a verdict in favor of defendant; and from a judgment entered pursuant to the verdict, plaintiff appealed. Affirmed.

SYLLABUS

Judgment -- Collateral Attack -- Presumption of Jurisdiction.

Rule reaffirmed that, where the validity of a domestic judgment is collaterally attacked on the ground of the want of jurisdiction of the court, jurisdiction is conclusively presumed unless the contrary affirmatively appears on the face of the record itself, and that this rule obtains where the record is silent upon the jurisdictional facts as well as when it affirmatively states or recites them.

Judgment.

The mere absence from the judgment roll of papers which ought to have been included, and which, if included, would affirmatively show that the court had jurisdiction, is not enough to "make it affirmatively appear from the face of the record that the court had no jurisdiction."

C. A Nye, for appellant.

F. H Peterson, for respondent.

OPINION

MITCHELL, J.

This was an action of claim and delivery. It is admitted that the plaintiff, who derived his title from one Olson, was the general owner of the property, and entitled to the possession, unless the defendant, as sheriff, had a prior special property by virtue of a levy under an execution issued out of the district court upon a judgment in favor of one Palacek and against Olson. The regularity of the execution on its face, and the fact that the levy on the property antedated its sale by Olson to plaintiff, are not questioned.

The contention of the plaintiff is that the judgment of the district court upon which the execution was issued was absolutely void because of the want of jurisdiction of the court to render it. The action of Palacek against Olson was originally brought in justice's court, and was appealed or attempted to be appealed, by the defendant, to the district court. Olson failed to appear, or enter the appeal on the calendar for trial, as required by statute; whereupon the plaintiff, Palacek, entered it, and upon his motion the court ordered judgment against the appellant, Olson, for the amount of the judgment of the justice, and costs of both cou...