Ill. Trust & Sav. Bank v. Town of Roscoe

• Decision Date: 02 July 1923
• Docket Number: No. 5018.,5018.
• Citation: 194 N.W. 649,46 S.D. 477
• Parties: ILLINOIS TRUST & SAVINGS BANK v. TOWN OF ROSCOE.
• Court: South Dakota Supreme Court

46 S.D. 477

194 N.W. 649

ILLINOIS TRUST & SAVINGS BANK

v.TOWN OF ROSCOE.

No. 5018.

Supreme Court of South Dakota.

July 2, 1923.

Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.

Application by the Illinois Trust & Savings Bank against the Town of Roscoe for a writ of mandamus to compel the levy of the tax to pay a judgment in favor of plaintiff. Judgment for plaintiff, and defendant appeals. Reversed.Ed. L. Grantham, of Aberdeen, for appellant.

Danforth & Barron and T. M. Bailey, all of Sioux Falls, for respondent.

SHERWOOD, J.

On December 1, 1899, the circuit court of Edmunds county, on default, made and signed the following instrument, omitting the names of parties and venue:

“Judgment.

The above-entitled action having come on for hearing at chambers in the town of Ipswich, in the county of Edmunds, and state of South Dakota, on the 1st day of December, A. D. 1899, the plaintiff appearing by its attorney, C. H. Barron, and no one appearing for the defendant, and it appearing from the summons and complaint herein that more than thirty days have elapsed since the service of said summons and complaint, and no one appearing for the said defendant, in any manner, and no answer or demurrer having been served, as required by said summons, and the court being fully advised in the premises:

On motion of C. H. Barron, attorney for the plaintiff, it is ordered that the plaintiff, Illinois Trust & Savings Bank, have and recover judgment against the defendant, town of Roscoe, for the sum of $734.40, together with its costs and disbursements herein amounting to $7.50, and in the aggregate to the sum of $741.90.

By the Court:

Loring E. Gaffy, Judge.

Ed. J. Engler, Clerk,

By G. M. Engler, Deputy.”

No paper, in this action, was filed until September 29, 1909, nearly 10 years thereafter. Then the summons, complaint, affidavit of service, affidavit of default, and the paper entitled “Judgment,” were all filed and entered as a judgment in the office of the clerk of courts of Edmunds county.

No further steps were taken in the case until June, 1921, more than 11 years after the papers were filed, when plaintiff applied for a writ of mandamus to compel the board of trustees of the town of Roscoe to levy a tax to pay this alleged judgment.

Defendant answered in legal effect pleading two defenses:

First, nul tiel record.

Second, this action was based on certain coupons to five bonds given by said town, which bonds since the signing of this judgment had been declared by the United States District Court invalid.

Findings and judgment for plaintiff, and defendant appeals.

[1] This is a proceeding in scire facias brought as a civil action, under our Code, R. C. 1919, § 2781. It is collateral to the judgment; and defendant's attack through it is a collateral attack on the judgment. 15 R. C. L. p. 838, § 311; 23 Cyc. p. 1064, § 2; Howard v. City of Huron, 5 S. D. 539, 59 N. W. 833, 26 L. R. A. 493.

The following facts appear from the face of the record before us:

(A) The instrument plaintiff relies on as a judgment was signed December 1, 1899.

(B) No paper in this case was filed in any court for nearly 10 years.

(C) No act was done showing plaintiff relied on this judgment, or would seek to enforce it, except the filing of the papers above referred to, for more than 20 years after this judgment or order was signed.

(D) The affidavit of service of summons was not sworn to until December 14, 1899, 14 days after the signing of the paper entitled “Judgment.”

(E) The affidavit of default was not sworn to until December 16, 1899, 2 days after the affidavit of service was made out and 16 days after the judgment or order was signed.

(F) The summons and complaint were served by a private person, and in his affidavit of service he did not state he was over 21 years of age at the time of such service.

The only recital concerning service in the instrument relied on by plaintiff as a judgment is, “it appearing from the summons and complaint herein that more than thirty days have elapsed since the service of the said summons and complaint.”

It is said in 15 R. C. L. p. 895, § 374:

“While as before seen it is generally held that presumption in favor of judgment of courts of general jurisdiction is conclusive on collateral attack where no want of jurisdiction is apparent of record, yet it is equally well settled that such judgments may be collaterally attacked when want of jurisdiction affirmatively appears from an inspection of the record. Presumptions are indulged in only to support the absence of evidence, or averments respecting the facts presumed, and cannot be resorted to when it affirmatively appears from the pleadings or evidence, that jurisdiction did not exist. Hence the presumption which the law implies in support of judgments of courts of general jurisdiction arises only with respect to facts concerning which the record is silent. When the record speaks at all it must be understood to speak the truth as to the particular fact of which it speaks, for by the law of its creation, it can tell no lies neither direct nor circumstantial. This is so not only when the record speaks in favor of the jurisdiction, but when it speaks against it. A fact can never be presumed in the face of statements to the contrary in the record and if the record states what was done it will not be presumed that something different was done. A presumption never arises that a recital of facts in the record is incomplete or incorrect, and when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred. Were this not so it would never be possible to attack collaterally the judgment of a superior court, although a want of jurisdiction might be apparent upon its face; the answer to the attack would...