Hodson v. O'Keeffe
| Decision Date | 06 October 1924 |
| Docket Number | 5532. |
| Citation | 229 P. 722,71 Mont. 322 |
| Parties | HODSON et al. v. O'KEEFFE. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; George B. Winston, Judge.
Action by Dale Hodson and Paul Hodson, copartners doing business as the Missoula Tombstone Company, against Edward O'Keeffe. From default judgment for plaintiffs and from order denying motion to vacate the judgment, defendant appeals. Appeal from judgment dismissed, and order affirmed.
Appeal from judgment taken more than six months after entry thereof cannot be considered, under Rev.Code 1921, § 9732.
Keeley & Keeley, of Deer Lodge, for appellant.
E. J Cummins, of Deer Lodge, for respondents.
The plaintiffs filed their complaint in this action February 27 1923. Summons was served upon the defendant personally March 1, 1923. Judgment by default was entered against him March 26, 1923. On January 5, 1924, counsel for defendant served upon counsel for plaintiffs and filed with the court notice of a motion to set aside and vacate the judgment. Written motion was served and filed with the notice. On February 25 1924, the motion, having theretofore been taken under advisement by the court, was overruled. On March 25, 1924 the defendant gave notice of appeal from the judgment and also from the order overruling the motion to set aside and vacate the judgment. Six months having elapsed since the entry of the judgment, the attempted appeal therefrom was too late and cannot be considered. Section 9732, R. C. 1921. However, the appeal from the order denying the motion is before us.
At the outset counsel for plaintiffs insist that the provisions of section 9187, R. C. 1921, do not warrant defendant's application to the court for an order setting aside the judgment, six months having elapsed since the entry thereof, citing State ex rel. Happel v. District Court, 38 Mont. 166, 99 P. 291, 35 L. R. A. (N. S.) 1098, 129 Am. St. Rep. 636; State ex rel. Smotherman v. District Court, 51 Mont. 495, 153 P. 119; Smith v. McCormick, 52 Mont. 324, 157 P. 1010. Those cases relate specifically to defaults entered through mistake, inadvertence, surprise, or excusable neglect. As to these the court said in the Happel Case:
But the statute does not apply to a case where lack of power in the court to enter the judgment appears upon the face of the judgment roll. When a complaint does not state facts sufficient to constitute a cause of action, the court does not have jurisdiction to render a judgment upon it. When the judgment roll upon its face shows the court was without jurisdiction to render the particular judgment, its pronouncement is not in fact a judgment. "The court which rendered it may set it aside at any time as an incumbrance upon its records." Crawford v. Pierse, 56 Mont. 371, 185 P. 315. "A judgment void on the face may be set aside on motion at any time." The Happel Case, supra, citing Palmer v. McMaster, 8 Mont. 186, 19 P. 585; Harvey v. Whitlach, 2 Mont. 55; State ex rel. Johnston v. District Court, 21 Mont. 155, 53 P. 272, 69 Am. St. Rep. 645; State ex rel. Cope v. Minar, 13 Mont. 1, 31 P. 723; People v. Greene, 74 Cal. 400, 16 P. 197, 5 Am. St. Rep. 448; Ex parte Crenshaw, 15 Pet. 119, 10 L.Ed. 682; People ex rel. Hart v. District Court, 33 Colo. 405, 80 P. 1065; 1 Freeman on Judgments, 98.
The specifications of error are to the effect: (1) That the court erred in giving judgment to plaintiffs and in overruling defendant's motion to set it aside for the reason that the complaint does not state facts sufficient to constitute a cause of action, and therefore the judgment is void upon the face of the judgment roll; and (2) the court erred in holding the so-called contract on which the action is based to be one of conditional sale rather than of bailment.
1. The complaint alleges that the plaintiffs are copartners doing business under the firm name and style of the Missoula Tombstone Company; that on or about the 4th day of June, 1919, plaintiffs and defendant entered into a contract in writing by which the plaintiffs agreed to design and furnish one granite monument and two granite markers for defendant to be used as a monument and markers for the graves of his deceased wife and son, for the sum of $600; a copy of the "contract" is attached to the complaint and made a part thereof as Exhibit A. "That thereafter plaintiffs proceeded to design and furnish said granite monument and two granite markers, and prior to May 30, 1920, duly perform all the conditions of said contract, on their part to be performed, the completion and delivering of said granite monument and two granite markers to the defendant and the same were duly acknowledged by the defendant." Then follows an allegation that the defendant paid $100 on the contract on December 6, 1920, leaving a balance of $500, no part of which had been paid, although the plaintiffs had often demanded from defendant payment of the same.
Exhibit A, the "contract," gives the complaint but little aid. In defendant's motion his counsel denominated this document "a fit subject for exhibition in the Green Bag," evidently referring to the facetious column in that journal where legal freaks, oddities, and drolleries are collected for the amusement of a profession too much crowded with the solemn things of life. The criticism is not too strong. But from this nondescript writing, Exhibit A, it is inferable that the defendant ordered from the Missoula Tombstone Company a monument and two markers to be delivered at the cemetery at Helmville on or before May 30, 1920, the price to be $600, $300 to be paid on delivery and the balance on or before December 1, 1920, defendant "to do hauling from Avon." The writing contains the following:
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