Kavanagh v. Hamilton

Citation53 Colo. 157,125 P. 512
PartiesKAVANAGH et al. v. HAMILTON.
Decision Date03 June 1912
CourtSupreme Court of Colorado

Appeal from District Court, City and County of Denver; George W Allen, Judge.

Action by Georgia B. Hamilton against Ella T. Kavanagh and others. From judgment for plaintiff, defendants appeal. Reversed.

Branch H. Giles, Edward C. Stimson, Lawrence Lewis and William B. Tebbetts, all of Denver, and Charles B. Ward of Boulder, for appellants.

E. P. Costigan, Ward & Ward, and Hugh McLean, all of Denver, for appellee.

GARRIGUES J.

1. October 6, 1891, Robert J. Hamilton died intestate, owning Denver property on Glenarm street. He left as his sole heirs his widow, Hannah Hamilton, two sons, George A. and Franklin R. Hamilton, and two daughters, Jessie F. and Georgie B. Hamilton. The latter was plaintiff below and is appellee here. Her name was 'Georgie,' but in this suit, begun March 17, 1906, it is spelled 'Georgia.' She was born March 28, 1885, and when her father died was 5 1/2 years old. Mr. Hamilton's estate was insolvent. The family lived in the Glenarm street property, on which was an incumbrance of $10,000, bearing interest at the rate of 7 per cent. per annum, and due October 22, 1893. The widow was appointed administratrix, and January 4, 1892, filed a petition in the county court, naming plaintiff as one of the defendants, and asking to sell or incumber the premises to pay debts. The petition alleged that decedent left no personal estate of any kind or value, that there was a large indebtedness on which the interest was past due, and that the taxes were unpaid. Petitioner asked to be authorized to either negotiate a loan, or to sell the real estate. On this petition a summons was issued, and January 6, 1892, returned served. March 8, 1892, W. T. Rogers was appointed guardian ad litem for the minor heirs, and March 14, 1892, answered the petition. May 23, 1892, after hearing the petition, the court entered a decretal order, finding due and legal service of process had been made upon all the defendants in the manner prescribed by law, and authorizing the administratrix to borrow $15,000 at 7 per cent. interest, and to secure the payment of the same by executing a trust deed on the property. June 28, 1892, this order was amended or modified by making the rate of interest 7 1/2 per cent. She borrowed the $15,000 from J. S. Brown & Bro., and secured its payment by a deed of trust on the property. July 11, 1892, the loan was approved by the court. October 27, 1894, taxes and interest being in default, the premises were advertised, and November 28, 1894, sold under the trust deed to J. Sidney and Junius F. Brown, who received a trustee's deed. The subsequent deeds of conveyance are as follows: J. Sidney and Junius F. Brown to Thomas Harrison; Thomas Harrison to Charles A. Brinley; Charles A. Brinley to Viola F. Hallowell; Viola F. Hallowell to Ella T. Kavanagh; and Ella T. Kavanagh to the Roanoke Investment Company, and since the foreclosure they have been in possession of the property, paid the taxes, and collected all the income. For over 14 years the original summons issued on the petition to sell or incumber remained in the files of the county court. In February, 1906, it was examined by defendant's counsel, and notes taken of the return. In March, before the institution of the partition suit, it was examined by plaintiff's counsel, who ordered certified copies of both the petition to sell and the summons, which were furnished by the clerk of the court. When the complaint was filed on the 17th, alleging no personal service on the plaintiff, defendants' counsel again examined the files, but the summons could not be found. Thereafter counsel for both parties met while at the courthouse inquiring about the lost summons, and while there they compared the certified copy of the petition with the original on file, and found that plaintiff's name was spelled 'Georgie' in the original petition, but that in the certified copy it was spelled 'George,' exactly as in the certified copy of the return. The person who made the copies, when her attention was called to the matter, said that, if she had made such a mistake in the petition, she was not sure that the copy of the return was correct.

At the trial in the district court, the original summons could not be produced or accounted for, and, to prove that an inspection of the judgment roll would show the judgment void, the court admitted in evidence the certified copy of the summons and return. In this certified copy of the sheriff's return plaintiff's name is spelled 'George B. Hamilton.' There is no 'i' between the second 'g' and the letter 'e.' The certified copies of the summons and petition were made by the same person, and the clerk signed the certificate without any personal knowledge as to whether or not they were correct. Each counsel testified as to how the name in the original appeared to him when he examined it. Counsel for defendants said, in his opinion, the name was spelled 'Georgie B. Hamilton,' and he so entered it on notes made at the time; that there was a blot between the second 'g' and final 'e.' Counsel for plaintiff testified that in his opinion the name was spelled 'George B. Hamilton' on the original return; that it appeared as if the person in writing the second 'g' had stopped, as if with indecision, before making another letter, giving an indentation between the 'g' and 'e'; but which was not dotted.

2. Plaintiff says this suit is to recover her interest in the land, and to partition the premises. She alleges she is the owner of an undivided one-eighth of the property, to which interest defendants have no title; that the county court proceeding as to her is void, because the court had no jurisdiction over her person, for the reason that she was not personally served with summons, and that the recital in the decree as to service is untrue; also, that the judgment is void because the court had no jurisdiction over the subject-matter. She claims that the judgment is void because the record proper stultified itself by showing that she was not served with summons; or, if the judgment is not void on this account, that it is voidable because she was not served, which fact, she alleges, is established by the evidence. Plaintiff further says that the name 'George B. Hamilton,' as found in the certified copy of the sheriff's return, is not hers, hence the record shows she was not served, notwithstanding the court found and recites in its judgment that she was. She invokes the rule of law that where a judgment recites generally due service of summons, without giving the specific mode of service, and the officer's return shows the mode of service, which is bad, that the record stultifies itself, and the specific recitals in the return will control the general recitals in the judgment. She prays for a partition or allotment of the premises, or that they be sold, the proceeds divided, and an accounting had of the rents and profits.

3. The district court found that plaintiff was not served with summons in the county court proceeding, and that the county court decree, as to her, was void for want of service; but did not say whether the finding was based on an inspection of the judgment roll or on oral evidence impeaching it. It found plaintiff owned an undivided one-eighth of the property; that the Roanoke Investment Company owned the balance, and ordered the premises to be partitioned, if practicable, by commissioners to be appointed by the court. The case is here on appeal.

4. The words 'void' and 'voidable' do not denote different degrees of faultiness in judgments, but are a classification based on the evidence. If an inspection of the record proper furnishes the facts showing that the court acted without jurisdiction, the judgment is void, and may be collaterally attacked. If on the other hand, the record does not show this jurisdictional infirmity, or does not furnish the evidence of nullity, or if it shows or recites jurisdictional facts which are untrue, the judgment is voidable. The attack upon it, however, in such a case, must be direct, for the purpose of establishing by other evidence the untruthfulness of the record. When this is done, it is as void as any judgment which the record shows was rendered without jurisdiction. The classification generally depends on the method of attack, which is determined by the source from which the evidence comes. If the judgment is void, the source of the evidence to prove it is the judgment roll, and the attack may be collateral; whereas, if it is voidable, the evidence to prove it void must come from some source other than the judgment roll, and the attack must be direct, and cannot be collateral. A void judgment must show from an inspection of its own record that it is void, while a voidable judgment shows from its record that it is good, and it will remain good until proven void, in a suit brought for that purpose. Plaintiff contends that the county court judgment is void and was subject to collateral attack; or, if she is mistaken in this, then that it was voidable, and is subject to direct attack by evidence showing that the recitals in the judgment of due service are untrue.

5. Before plaintiff was entitled to a judgment of partition, she had to establish her title, and before it could render such a judgment, the district court was obliged to find, and it did find, that the county court judgment was void.

It is necessary, therefore, at the outset, to determine whether the attack on the county court judgment was direct or collateral. Direct attack on the judgment of a court of record may be by motion, as in Du Bois v. Clark, 12 Colo.App. 220, 55 P. 750 or by answer and cross-complaint, as in Wilson v. Hawthorne, ...

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28 cases
  • Rael v. Taylor
    • United States
    • Colorado Supreme Court
    • 2 Mayo 1994
    ...of law, not of fact. Closed Basin Landowners Ass'n v. Rio Grande Water Conservation Dist., 734 P.2d 627 (Colo.1987); Kavanagh v. Hamilton, 53 Colo. 157, 125 P. 512 (1912) (holding that on collateral attack the jurisdiction of a court of record must be determined by its own record). As such,......
  • Baldwin v. Anderson, 5653
    • United States
    • Idaho Supreme Court
    • 2 Mayo 1931
    ... ... irregular the procedure leading to the judgment may have ... been, the judgment is neither void nor voidable. ( ... Kavanagh v. Hamilton, 53 Colo. 157, Ann. Cas. 1914B, ... 76, 125 P. 512; 14 C. J. 514; State v. Poynter, 34 ... Idaho 504, 205 P. 561, 208 P. 871; ... ...
  • People ex rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke
    • United States
    • Colorado Supreme Court
    • 8 Enero 1923
    ...well settled that a judgment cannot be questioned collaterally for an error committed in the exercise of jurisdiction.' In Kavanagh v. Hamilton, 53 Colo. 157, on page 163, 125 P. Ann.Cas. 1914E, 76, this court, in speaking of direct and collateral attacks, says that an equitable action to c......
  • Nuttallburg Smokeless Fuel Co. v. First Nat. Bank of Harrisville
    • United States
    • West Virginia Supreme Court
    • 8 Noviembre 1921
    ... ... returned in the same action, or by procedure to vacate the ... judgment. Paul v. Malone, 87 Ala. 544, 6 So. 351; ... Kavanaugh v. Hamilton, 53 Colo. 157, 125 P. 512, ... Ann.Cas. 1914B, 76; Buckingham v. Osborne, 44 Conn ... 133 (it seems that Connecticut has never held to the verity ... ...
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