Jefferson v. Gallagher

• Decision Date: 20 July 1915
• Docket Number: Case Number: 4988
• Parties: JEFFERSON v. GALLAGHER et al.
• Court: Oklahoma Supreme Court

1915 OK 566

150 P. 1071

56 Okla. 405

JEFFERSON v. GALLAGHER et al.

Case Number: 4988

Supreme Court of Oklahoma

Decided: July 20, 1915

Syllabus

¶0 1. INFANTS--Property and Conveyances--Statutes. Under the statutes of Arkansas, in force in the Indian Territory on the 2d day of March, 1906, a male person under the age of 21 years was incompetent to mortgage, convey, or otherwise dispose of, or make any contract relating to, real estate, or any interest therein.

2. INFANTS--Process--Statutes. Section 5611, Comp. Laws 1909, being section 4721, Rev. Laws 1910, provides that: "When the defendant is a minor, under the age of fourteen years, the service must be upon him and upon his guardian or father, or if neither of those can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone will be sufficient. The manner of service may be the same as in the case of adults."

3. SAME--Issuance and Service of Summons--Waiver by Minor. An infant cannot waive issuance and service of summons, nor can any person, not even his guardian, do it for him. In all cases where personal service upon an infant is required, he cannot waive such service, nor can his guardian or guardian ad litem, or his attorney, waive it for him, nor can any person appear for an infant until he is brought into court, according to law. Under section 5565, Comp. Laws 1909, (sec. 4688, Rev. Laws 1910), the defense of an infant must be made by a guardian for the pending suit, who may be appointed by the court in which the action is prosecuted, or by the judge thereof, or by a county judge; but the appointment cannot be made until after the service of the summons in the action has been made upon such minor, as provided by law.

4. JUDGMENT--Requisites--In General. The first fundamental requisite to the validity of a judgment is that it should have been rendered by a court having jurisdiction, for without jurisdiction the courts can do nothing, and a judgment rendered without jurisdiction is a mere nullity. The jurisdiction required is of three sorts: (1) Jurisdiction of the parties; (2) jurisdiction of the general subject-mater; (3) jurisdiction of the particular matter which the judgment professes to decide.

5. SAME--Validity--Jurisdiction of Person. A judgment rendered without jurisdiction of the person is no judgment at all; it is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever. As to the person in whose favor it professes to be, it places him in no better position than he occupied before, and gives him no new right. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing claims. It is not necessary to take any steps to have it reversed, vacated, or set aside, and whenever it is brought up against the party, he may assail its pretentions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral. It is a judgment which is entirely void, and may be shown to be void in a collateral as well as in a direct proceeding by extrinsic evidence as well as by the record itself.

6. SAME--Direct Attack--Fraud. The petition in this case alleges that two certain judgments in the district court of Grady county numbered, respectively, 2024 and 2025, were procured by fraud on the part of the plaintiffs therein, in that the defendant, Albert Harrison, was then a minor under the age of 18 years, and at the time had a duly appointed, qualified, and acting guardian, and that no service was had on said Albert Harrison, or his said guardian, but an attempted acceptance of service by Albert Harrison was filed, in which the facts set forth in the petition of plaintiff were alleged to be true, but which judgments were erroneous, irregular, obtained by fraud, and should be vacated and set aside. Held, that said action, under the language of said petition, and as shown by the records in the case, is a direct attack upon said judgments referred to therein.

Error from District Court, Grady County; Frank M. Bailey, Judge.

Action by Layson Jefferson, a minor, suing by and through W. C. Allen, his guardian, against J. H. Gallagher and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

C. S. Arnold, for plaintiff in error.

Bond, Melton & Melton and Babcock & Trevathan, for defendants in error.

ROBBERTS, C.

¶1 This case was commenced in the district court of Grady county, in the month of December, 1911, by the plaintiff in error, against the defendants in error, to cancel and set aside two judgments, and certain conveyances, and to quiet title to certain lands, formerly Indian allotments of the Choctaw and Chickasaw Nations, the allottee being a full-blood Choctaw.

¶2 The plaintiff in his petition, after the customary allegations as to residence and jurisdictional matters, alleges: That he is the owner of certain lands involved in this action and fully described in said petition; which lands were allotted to Charlie Harrison, now deceased; that as sole heir of Albert Harrison, deceased, Layson Jefferson, who is a half-brother of Albert Harrison, became the owner in fee simple of said lands at the death of the said Albert Harrison, who died intestate, without issue, and without having been married, on or about the 20th day of May, 1909; that on or about the 1st day of June, 1909, the defendants, or some of them, unlawfully entered into possession of the said lands, and have ever since unlawfully withheld possession thereof from the plaintiff, to his damage in the sum of $ 500, and have used the rents and profits arising therefrom to their own use and benefit, and to plaintiff's damage in the sum of $ 500; that on the 20th day of May, 1909, the day of the deeds are now of record in Grady county, Okla., which deeds mentioned as being dates upon which Albert Harrison was in any wise connected with the defendants, or any of them, the said Albert Harrison was a minor; that on the 2d day of March, 1906, the defendants Gallagher and Erwin procured from Albert Harrison and his stepmother, Awachima Harrison, deeds to said lands, which deeds are now of record in Grady county, Okla., which deeds are wholly void, for the reasons that said grantors were enrolled as full-blood Choctaw Indians, the consideration paid was less than the appraised value of said land, and the grantor, Albert Harrison, was but 15 years of age, and that Awachima Harrison had but a dower interest therein, and Awachima Harrison is now dead; that on the 21st day of October, 1907, defendants Gallagher and Erwin, joined by their wives, executed to defendant Hill a warranty deed for said lands; that on the 14th day of May, 1909, in two certain causes then pending in the district court of Grady county, Okla., numbered, respectively, 2024 and 2025, in which causes J. T. Erwin and J. H. Gallagher were respectively plaintiffs and Albert Harrison was defendant, judgments were rendered in favor of said plaintiffs and against Albert Harrison, quieting the title to said lands in the said plaintiffs in said causes, which judgments were procured by fraud on the part of the successful plaintiffs, in that the said Albert Harrison was then a minor under the age of 18 years, and then had a duly appointed, qualified, and acting guardian; that no service was had on said Albert Harrison or his said guardian, but an attempted acceptance of service by Albert Harrison was filed, in which the facts set forth in the petitions of plaintiffs were alleged to be true, but which judgments were erroneous, irregular, obtained by fraud, and should be vacated and set aside; that on the 27th day of May, 1909, the defendant Coley executed a deed to Frank E. Parke, which deed is void for the reason that said Coley never had any interest in said land; that on July 3, 1909, said Parke executed to defendant Hill a quitclaim deed to said land; that the said Hill thereafter by warranty deeds undertook to convey said lands to defendant Vickrey, and on September 29, 1909, defendants Coley and Jackson executed to Vickrey deeds to said land, which deeds were approved by the county judge of Haskell county, Okla., but said deeds are void for the reason said Coleys and Jackson had no interest in the land; that on October 22, 1909, defendant Vickrey executed his warranty deed to a portion of said land to defendant John Benda, and on February 7, 1910, defendants John and Anna Benda executed to Vickrey a mortgage thereon; that on June 1, 1909, said Vickrey sold the remaining portion of said land to Cinthyann D. Smith, and on the same day defendants Cinthyann D. and Charles P. Smith executed mortgages thereon to Vickrey, which said mortgages were by Vickrey assigned to J. E. Shirk; that each and every one of said deeds, judgments, and mortgages are void, for the reason that the same were in violation of the statutes of the United States, and were taken from and against Albert Harrison, a minor, who died before attaining his majority; that said instruments cast a cloud upon the title of plaintiff to said lands, and plaintiff prays for the title and possession of said land, damages, and that each and all of said deeds, judgments, and mortgages be vacated, set aside, and held for naught, and that plaintiff's title to said land be quieted.

¶3 Answers.

¶4 On January 13, 1912, defendant Vickrey filed his separate answer, in which he denies each and every allegation in the petition, except such as should be expressly admitted, and alleges in effect as follows: That defendants Gallagher and Erwin received the deeds from Albert Harrison as alleged in the petition,...