Hockaday v. Jones

• Decision Date: 11 February 1899
• Citation: 1899 OK 20,56 P. 1054,8 Okla. 156
• Parties: ROLLIN M. HOCKADAY et al. v. M. F. JONES
• Court: Oklahoma Supreme Court

1899 OK 20

56 P. 1054

8 Okla. 156

ROLLIN M. HOCKADAY et al. v. M. F. JONES

Supreme Court of Oklahoma

Decided: February 11, 1899

SYLLABUS

¶0 1. ACTION--Constructive Service on Resident Defendant--Void Judgment. A judgment rendered against a defendant by default upon constructive service by publication, in an action for goods sold and delivered,--there being no personal service, and no appearance of the defendant,--is absolutely void, where, at the time of the commencement of such action and of the making of such publication, the defendant was a resident of the Territory, and, by due diligence, summons could have been personally served upon him.

2. JUDGMENT--Action to Enjoin Execution--Must Show, What. A party against whom a judgment has been rendered by default, which judgment is void for want of jurisdiction over the person of the defendant, cannot maintain an action to enjoin an execution on said judgment, or to annul such judgment, unless he makes it appear, both from his pleadings and proof, (1) that he has a meritorious defense to the cause of action on which the judgment is based; (2) that he has no adequate remedy at law; and (3) that the existence of such judgment is in no wise attributable to his own neglect.

3. VOID JUDGMENT--Remedy. Where a judgment has been rendered against a party without service, actual or constructive, he has a complete adequate remedy at law against the same, under subdivision 3 of section 586 of the Code of Civil Procedure, which provides that the district court shall have power to vacate or modify its own judgment or order at or after the term at which such Judgment or order was made, for irregularity in obtaining such judgment or order; a judgment without service being irregularly obtained.

Error from the District Court of Lincoln County; before Jno. H. Burford, District Judge.

Action by M. F. Jones, plaintiff, against Rollin M. Hockaday, W. H. Harmon, and E. J. Rowe, partners, and Frank Gebke, sheriff of Lincoln county, to vacate and annul a judgment, to vacate and annul certain garnishment proceedings, and to restrain the enforcement of executions issued upon said judgment and garnishment proceedings. From a judgment for plaintiff, defendants prosecute this appeal. Reversed.

T. G. Chambers, R. N. McConnell and R. G. Hays, for plaintiff in error.

John W. Shartel and Asp & Cottingham, for defendants in error.

TARSNEY, J.:

¶1 Harmon, Hockaday & Rowe brought suit in the district court of Lincoln county against Jones to recover upon an account for goods and merchandise sold, in the sum of $ 575.31. The action was commenced by publication, no personal service being obtained. An affidavit, sufficient in form, and regular upon its face, was made, alleging that the defendant was a non-resident of the Territory, and that service of summons could not be made on defendant, and that plaintiffs, with due diligence were unable to make service of summons; that debts were owing the defendant in the county of Lincoln. Summons and garnishment were issued against divers persons indebted to said defendant. In the action, judgment was rendered by default against the defendant Jones, and judgments were also rendered therein against divers persons summoned as garnishees. Executions were issued, and, at the commencement of this suit, were in the hands of the plaintiff in error, the sheriff, who was about to levy the same against the several garnishees. This action was instituted by Jones, seeking to cancel and annul the said judgment and restrain the collection of said executions, on the ground that the judgments were void, for the reason that at the time of the action against him was commenced he was a resident of this Territory, and by the exercise of due diligence the plaintiffs in that action could have obtained personal service of summons upon him. Upon the trial of this cause, the court below found for the plaintiff, and that the allegations in plaintiff's petition were true.

¶2 I. As the only issues of fact tried by the court below, viz. (1) whether Jones, at the time of the commencement of the suit against him, was a resident of this Territory, and could, by proper diligence, have been personally served with process; and (2) whether said Jones had, by any act, entered a voluntary appearance in said action, so as to give the court jurisdiction--were controverted facts, determined by the court below upon conflicting testimony, we cannot review the action of the court in arriving at its conclusion upon those questions. Where a case is tried by the court without a jury, and a general finding of facts is made upon oral testimony, such finding is a finding of every special thing necessary to be found to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact. (Tootle v. Brown, 4 Okla. 612, 46 P. 550; United States Nat. Bank v. National Bank of Guthrie, 6 Okla. 163, 51 P. 119; Penny v. Fellner, 6 Okla. 386, 50 P. 123; Gillette v. Murphy, 7 Okla. 91 54 P. 413; City of Guthrie v. Shaffer, 7 Okla. 459, 54 P. 698.)

¶3 The trial court having found that no personal service had been had upon Jones, and that, at the time constructive service by publication was sought to be obtained, he was not a non-resident of the Territory, but was a resident therein, and by due diligence personal service could have been had upon him, do such findings support the conclusion that the court rendering judgment upon such attempted constructive service was without jurisdiction, and the proceedings and judgment absolutely void? This must be answered in the affirmative. Jurisdiction in quasi proceedings in rem implies jurisdiction of the person as well as of the subject-matter. Jurisdiction of the person is acquired by appearance or service. There is no appearance. Service is obtained by summons upon a resident; by publication upon a non-resident, or one concealed and beyond the reach of summons. Service in this case was by publication, but the defendant was a resident, and not concealed. Therefore the publication was inoperative to bring the defendant into court, and the judgment void for want of jurisdiction of the person. (Bixby v. Bailey, 11 Kan. 359; Insurance Co. v. Robbins, [Neb.] 73 N.W. 269; Stamps v. Bridwell, 57 Mo. 22; Brown v. Woody, 64 Mo. 547; Freem. Judgm. [4th Ed.] sec. 117; 1 Black. Judgm. sec. 218; 12 Enc. Pl. & Prac. p 179, and cases cited.)

¶4 Mr. Black, in the section of his work above cited, says: "It is a familiar and universal rule that a judgment rendered by a court having no jurisdiction of either the parties or the subject-matter is void, and a mere nullity, and will be so held and treated whenever and wherever, and for whatever purpose, it is sought to be used or relied on as a valid judgment." Mr. Freeman says: "Jurisdiction over the person is obtained by service of process within the jurisdiction of the court, or in some other manner authorized by law, or by the voluntary appearance of a party during the progress of the cause." (Freem. Judgm. sec. 119.) And in section 120 of said work the author says: "The defendant may also give the court jurisdiction by his voluntary action, as where he appears by his answer, or in some other mode recognized by law; and, if he does not do so voluntarily, then, before the court can rightfully exercise jurisdiction over him, it must be authorized to require him to appear before it and submit to its judgment in the action or proceeding, and its process requiring such appearance must be issued and served upon him in substantial compliance with the law."

¶5 The authority cited by counsel for plaintiffs in error (Ogden v. Walters, 12 Kan. 282) to support the contention that the judgment was not void, but only voidable, at most, is not applicable. That was an entirely different case. In that case the judgment was sought to be attacked in a collateral proceeding. The absolute falsity of the affidavit was not put in issue, but only its sufficiency. It was an action to foreclose a mortgage, the statute requiring that, "before service can be made by publication, an affidavit must be filed that service of summons cannot be made within this state on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section." (Code Civ. Proc. Sec 78.) The affidavit did state "that service of summons cannot be made within the state of Kansas on the defendants, David A. Williams and Mary Williams; that the case is one of those mentioned in section 78 of the Code of Civil Procedure, to wit, suit for the foreclosure of a mortgage upon real estate situated and being in said county of Brown." The court held that the affidavit in the case, although undoubtedly defective in not stating positively and directly that the defendants were non-residents of the state, or that they had departed from the county of their residence with intent to delay or defraud their creditors or to avoid the service of summons, or that they kept themselves concealed with like intent, and that the court trying the cause might properly have refused to render any judgment upon the service obtained by such an affidavit, or might have set aside such a service, still, the affidavit stating inferentially that the defendants were non-residents of the state, in view of the general rule that all presumptions from absence or silence in the record of a court of general jurisdiction will be in favor of the regularity and validity of the proceedings of such court, the defects in the affidavit in question were only irregularities, which rendered the judgment thereon voidable only, and not void. There the only question was whether the record introduced in evidence showed upon its face the judgment to be void. Here the record is complete and regular upon its face to support the judgment, but the judgment is attacked directly, not collaterally, on the ground that the affidavit for publication, in stating...