Johnson v. Ranum
| Decision Date | 28 July 1932 |
| Docket Number | 6010 |
| Citation | 244 N.W. 642,62 N.D. 607 |
| Court | North Dakota Supreme Court |
Rehearing Denied October 19, 1932, Reported at 62 N.D. 607 at 613.
Appeal from the District Court of Mountrail County Moellring, J.
Affirmed.
C N. Cottingham, for appellant.
A person suing to quiet title must rely upon the strength of his own title, and not upon the weakness of his adversary's. Brown v. Comonow, 17 N.D. 84, 114 N.W. 728; D.S.B. Johnston Land Co. v. Mitchell, 29 N.D. 510, 151 N.W. 23; O'Leary v. Schoenfield, 30 N.D. 374, 152 N.W. 679; Company A v. State, 58 N.D. 66, 224 N.W. 661.
In a collateral attack on a judgment, the petition should allege not merely that the plaintiff had no legal notice, but also what, if anything, is shown by the record as to the issue and service of process in such action. Shane v. Peoples, 25 N.D. 188, 141 N.W. 737.
Defect in statement of facts not made necessary by statute may be disregarded as surplusage, and will not vitiate an otherwise sufficient affidavit, which must be considered in its entirety. Haney v. Haney (Minn.) 203 N.W. 614; 50 C.J. 512; Pillsbury v. Streeter, 15 N.D. 174, 107 N.W. 40; Davis v. Cook (S.D.) 69 N.W. 19; Leigh v. Green (Neb.) 90 N.W. 255.
A judgment regular on its face is only subject to direct attack, and canot be attacked collaterally. Freeman, Judgm. 4th ed. P336; Van Fleet, Collateral Attack, P550; Atwood v. Tucker, 26 N.D. 622, 145 N.W. 587; St. Anthony & D. Elevator Co. v. Martineau, 30 N.D. 425, 153 N.W. 416; Hall v. Sauntry (Minn.) 75 N.W. 720; Miles v. Ballantine (Neb.) 93 N.W. 708; Nelson v. Nelson (Neb.) 115 N.W. 1087.
The parties to an action and the persons in privity with them cannot collaterally attack or impeach a judgment for fraud. Freeman, Judgm. 4th ed. P336; Tuttle v. Tuttle, 48 N.D. 10, 181 N.W. 898.
The failure of an affidavit to state facts required by statute does not render the judgment of a court of superior jurisdiction subject to collateral attack by a party to the action where the court has decided that the affidavit is sufficient to give it jurisdiction. Bull v. Campbell, 141 C.C.A. 47, 225 F. 923; Essig v. Lower, 120 Ind. 239, 21 N.E. 1090; Goodell v. Starr, 127 Ind. 198, 26 N.E. 793.
C. D. Aaker, for respondent.
Any attack on a judgment for fraud in its procurement is a direct attack no matter what the form of the procedure, for the reason that a judgment procured by fraud is utterly void. Thompson v. McCorkle, 136 Ind. 484, 43 Am. St. Rep. 334; Cotterell v. Koon, 151 Ind. 182, 51 N.E. 235; McTiesch v. Ball, 58 Wash. 690, 190 P. 209, 137 Am. St. Rep. 1087.
The character of the attack is determined by the purpose of the action in which the attack is made. N.W. & P. Hypotheek v. Ridpath, 29 Wash. 687, 70 P. 139; Sockey v. Winstock, 43 Okla. 758, 144 P. 372; Houser v. Bonsal, 149 N.C. 51, 62 S.E. 776; Schmitt v. Dahl (Minn.) 93 N.W. 665; Mahoney v. State Ins. Co. (Iowa) 110 N.W. 104, 9 L.R.A.(N.S.) 490; Stewart Lbr. Co. v. Downs (Iowa) 120 N.W. 1067; Earle v. Earle, 91 Ind. 27; Morrill v. Morrill, 20 Or. 96, 25 P. 362; Shane v. Peoples, 25 N.D. 188, 141 N.W. 737; Sharry v. Eszlinger, 45 N.D. 133, 176 N.W. 938; Cole v. Cunningham, 133 U.S. 107, 33 L. ed. 538; Lewis v. Mauerman, 35 Wash. 156, 76 P. 737; Knight v. Harrison, 43 N.D. 76, 174 N.W. 632; Krutz v. Isaacs, 25 Wash. 566, 66 P. 141.
Proceedings for securing service by publication must strictly comply with statutory provisions. Roberts v. Enderlin Invest. Co. 21 N.D. 594, 132 N.W. 145; Johnson v. Engelbard, 45 N.D. 11, 176 N.W. 134; Paul v. Green, 49 N.D. 319, 191 N.W. 469; Curtis v. Hoyt (Iowa) 186 N.W. 460; Longee v. Beeney, 22 Colo.App. 603, 126 P. 1102; Gibson v. Wagner, 25 Colo.App. 129, 136 P. 93; McPhail v. Munes, 38 Cal.App. 557, 177 P. 193; McCracken v. Flanagen, 127 N.W. 493.
Where a judgment is void upon its face, it may be attacked collaterally at any time by one claiming an interest in the subject matter affected. Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3.
A fatal defect in affidavit for publication renders default judgment a nullity. Hughes v. Fargo Loan Agency, 46 N.D. 26, 178 N.W. 993.
Judgment entered on void affidavit for publication renders the judgment void as entered without jurisdiction. Atwood v. Tucker, 26 N.D. 622, 145 N.W. 587; Jablonski v. Piesik, 30 N.D. 543, 153 N.W. 274.
This is an action to quiet title to Lots one, two, three, four and six, in Block thirty, and Lot fourteen, in Block fifteen, Original Townsite of Van Hook, Mountrail County, North Dakota. The complaint is in the regular statutory form claiming title in the plaintiff and praying that the defendants be required to set forth their claims, etc. The defendant, Ranum, answered, claiming to be the owner of Lots one, two, three, four and six in Block Thirty, Village of Van Hook, and that prior to the sale of Lot fourteen, in Block fifteen to the defendant, T. B. Rossum, he was the owner of said Lot fourteen, in said Block fifteen, and all his claims of title to said property are based upon the following allegation in his answer: "That during the month of September, 1922, this defendant commenced an action in the district court against the above named plaintiff as defendant, in which action he demanded judgment for the sum of Two Thousand One Hundred Seventy-six and 55/100 ($ 2,176.55) Dollars with interest and costs of the action; that the provisional remedy of attachment was invoked in said action and under date of September 29, 1922, the sheriff of Mountrail County, North Dakota, levied upon all plaintiff's right, title and interest in and to said above described real property; that thereafter such proceedings were duly had in the District Court of Mountrail County, North Dakota, that on the 8th day of May, 1924, the then Sheriff of Mountrail County, North Dakota issued and delivered to this defendant his certain sheriff's deed covering and described the premises described in paragraph one (1) of plaintiff's complaint herein."
The defendant, Rossum, answered, claiming title by deed from the defendant, Ranum. The plaintiff replied to each answer, alleging that proceedings in attachment by Ranum against the plaintiff, Johnson, was fraudulent and the defendant, Ranum, an officer of the First National Bank of Van Hook, did fraudulently transfer to himself certain notes given by the plaintiff, Gust Johnson, to the First National Bank of Van Hook, and that the transfer of said notes to the defendant, Ranum, was after the notes had been fully paid. That the transfer was without consideration and the suit against the plaintiff on said notes was by service of summons by publication.
That the judgment mentioned in paragraphs five and six (in defendant's answer herein) is absolutely void from the beginning and the sheriff's deed described in said paragraph six is null and void and of no effect. In 1922 the plaintiff, Gust Johnson, was the owner of the property involved and also a hotel building in the village of Van Hook.
The trial judge found all the facts and conclusions of law in favor of the plaintiff and against the defendants and from a judgment duly ordered thereon the defendants appeal.
During the summer of 1922, the plaintiff, on account of domestic trouble, left the country, and was not heard from until sometime in the year 1927, when he wrote to his daughter. In the meantime, his wife, Amanda Johnson, secured a divorce and married again.
It is the contention of the defendant, Ranum, that the plaintiff and Ranum were responsible to the purchasers of stock in the Standard Fur and Clothing Company, which had been organized by the plaintiff and after the plaintiff had disappeared, in order to clean up the debts of the fur company, he had Mrs. Johnson give a mortgage on the hotel at Van Hook for $ 2,500, which money he used to clean up the debts of the Fur Company; that he personally took up the notes which the plaintiff, Johnson owed to the bank in the sum of $ 2,176.55, upon which he sued the plaintiff, Gust Johnson, attaching the property involved and securing title to the same by a sheriff's deed on execution.
On the other hand, the plaintiff claims that after the disappearance of the plaintiff, Johnson, the defendant, Ranum, went to Mrs Johnson, and in the presence of the plaintiff's daughter Edith, said that the plaintiff owed two notes at the bank; that Mrs. Johnson was to sign notes to take the place of the plaintiff's notes and then he was to take the old notes and start an attachment action on the property in order to get title to it and in that way he could protect the children; that he was doing it, not for himself, but for their benefit because they did not have any other means of support than the property; that they (Mrs. Johnson and the children) should be quiet about the arrangements and should not say anything about it to any one, that if they did some of the numerous creditors might come in and make trouble. Mrs. Johnson gave a note and mortgage to the First National Bank of Van Hook for $ 2,500, secured by mortgage on the hotel, which note and mortgage she subsequently paid in full and the defendant Ranum took the plaintiff's old notes, brought an action thereon, attaching the property involved and secured title to the property by a purchase...
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