Keane v. Allen

• Decision Date: 26 January 1949
• Docket Number: 7467
• Parties: KEANE v. ALLEN et al
• Court: Idaho Supreme Court

202 P.2d 411

69 Idaho 53

KEANE v. ALLEN et al

No. 7467

Supreme Court of Idaho

January 26, 1949

Appeal from District Court, First Judicial District, Shoshone County; Albert H. Featherstone, Judge.

On appeal of defendant Allen, order affirmed and proceeding remanded; and on defendants' appeal, order reversed and proceeding remanded.

H. S Sanderson, of Coeur d'Alene, for appellant J. A. Allen appearing specially.

A pleading which would otherwise be a special appearance is not a general one simply because the attorney in signing fails to follow his signature by some recital which shows that he is appearing specially. 6 C.J.S., Appearances, § 12(7) page 27; Noble v. Crandall, 49 Hun 474, 475, 2 N.Y.S. 265; Hamburger v. Baker, 35 Hun, N.Y., 455, 456.

Herman J. Rossi, of Wallace, and Therrett Towles, of Spokane, Washington, for appellant Hunter Creek Mining Co.

W. F. McNaughton, of Coeur d'Alene, and Therrett Towles, of Spokane, Washington, for all other appellants.

Judgment of dismissal, entered by agreement of parties to action, pursuant to a compromise and settlement of controversy, is a "judgment on the merits," and bars any other action for the same cause. United States v. Parker, 120 U.S. 89, 7 S.Ct. 454, 30 L.Ed. 601; Steele v. Beaty, 215 N.C. 680, 2 S.E.2d 854, 856; State v. Young, 44 Wyo. 6, 7 P.2d 216, 219, 81 A.L.R. 114.

"Dismissal with prejudice" is as conclusive of rights of parties as if suit had been prosecuted to final adjudication adverse to plaintiff and is res judicata of all questions which might have been litigated in the suit. Pulley v. Chicago, R. I. & P. Ry. Co., 122 Kan. 269, 251 P. 1100; Maib v. Maryland Casualty Co., 17 Wash.2d 47, 135 P.2d 71, 74; Bank of America v. Jorjorian, 303 Ill.App. 184, 24 N.E.2d 896, 897.

In the absence of proper notice to these appellants of respondent's motion to vacate the judgment and of the hearing thereof, the court was without jurisdiction to act, and its order setting aside the judgment of dismissal was in violation of the constitutional rights of these appellants. Constitution of the United States, Amendment V.; Constitution of the State of Idaho, Art. 1, Sec. 13; Mays v. District Court, 34 Idaho 200, 207, 200 P. 115; Reed v. Stewart, 12 Idaho 699, 706, 87 P. 1002, 1152; 31 Am.Jur. "Judgments," Sec. 779, page 310.

Court had no jurisdiction to vacate judgment on ground of fraud made on motion filed more than eight months after adjournment of term at which judgment was rendered and after another term had intervened between entry of judgment and filing of motion. I.C.A. Sec. 5-905; Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099; State v. Douglass, 35 Idaho 140, 147, 208 P. 236; Baldwin v. Anderson, infra (Point 4); Savage v. Stokes, 54 Idaho 109, 28 P.2d 900 (Point 2); Miller v. Prout, 33 Idaho 709, 197 P. 1023; Armitage v. Horseshoe Bend Co. Ltd., 35 Idaho 179, 204 P. 1073.

Authority of court to vacate judgment for fraud after the term is limited to cases where fraud complained of was practiced in very act of obtaining the judgment; the fraud must be extrinsic and collateral to matter tried, and not a matter which was actually or potentially in issue in the action. Allen's representations, if any, made to respondent or his attorneys did not constitute extrinsic fraud justifying court in vacating judgment of dismissal. 49 C.J.S., Judgments, § 269, page 487; Donovan v. Miller, 12 Idaho 600, 88 P. 82, 9 L.R.A., N.S., 524, 10 Ann.Cas. 444; Mayor, etc., of the City of New York v. Brady, 115 N.Y. 599, 22 N.E. 237.

W. H. Langroise and W. E. Sullivan, both of Boise, and Eugene F. McCann, of Wallace, for respondent.

Courts of general jurisdiction have inherent power to vacate judgment of dismissal obtained by means of extrinsic fraud. Bullard v. Zimmerman, 88 Mont. 271, 292 P. 730; Gillen v. Gillen, 1945, 117 Mont. 496, 159 P.2d 511; Kasparian v. Kasparian, 1933, 132 Cal.App. 773, 23 P.2d 802.

Application for vacation of judgment or dismissal on grounds of extrinsic fraud may be made by means of motion in the original suit as well as by independent suit in equity. Baldwin v. Anderson, 1932, 51 Idaho 614, 8 P.2d 461; Gillen v. Gillen, supra; Kasparian v. Kasparian, supra; Rhea v. Millsap, 68 Cal.App.2d 449, 156 P.2d 941; Moore v. Capital Gas Corp., 117 Mont. 148, 158 P.2d 302.

Where appellant appeals from order overruling purported special appearance and also appeals from judgment on the merits, he has entered a general appearance and is in court for all purposes. Pittenger v. Al. G. Barnes Circus, 39 Idaho 807, 230 P. 1011; American Soda Fountain Co. et al. v. Hairiston Drug Co., Tex.Civ.App., 52 S.W.2d 764, 767; Order of Ry. Conductors of America v. Bandy, 177 Ark. 1165, 8 S.W.2d 448; Minick v. Minick, 111 Fla. 469, 149 So. 483.

Action of trial court in reinstating cause will not be set aside on appeal unless an abuse of discretion clearly appears. Hecq v. Conner, 203 Cal. 504, 265 P. 180, 183; Smith v. Monumental Life Insurance Co., 301 Ill.App. 217, 22 N.E.2d 399; Zimmerman v. Western Builders' & Salvage Co., 38 Ariz. 91, 297 P. 449, 450.

Hyatt, Justice. Holden, C. J., Givens, J., and Taylor, and Sutphen, District Judges, concur.

OPINION

Hyatt, Justice.

We have here two separate appeals in a proceeding to set aside by motion on the ground of extrinsic fraud, a judgment of dismissal of an action. The background is briefly as follows:

On June 25, 1947, respondent Keane for himself as a partner and in the interests of the partnership creditors, brought suit against appellant J. A. Allen, as the other partner, for a partnership dissolution and accounting.

The remaining appellants along with the defendant, B. W. Porter, were named as parties to the action in order that a complete accounting might be had of the partnership affairs and transactions, either because they were corporations organized and controlled by the partners in their partnership business, or were persons and corporations with whom the partnership had substantial dealings.

Summons was served upon all the defendants and appellants above named except B. W. Porter and Montana Leasing Company.

Thereafter, on July 8, 1947, and before any further action was taken in the case, a stipulation for dismissal of the suit with prejudice was entered into between the attorneys for Keane, and W. F. McNaughton of Coeur d'Alene, Idaho, and Therrett Towles of Spokane, Washington, as attorneys for Allen individually and as President and Treasurer, respectively, of Lexington Silver-Lead Mines, Inc., and Coeur d'Alene Consolidated Silver-Lead Mines, Inc., and James A. Wayne, of Wallace, Idaho, as attorney for Hunter Creek Mining Co., all of which parties defendant had appeared in the action by demurrers. Upon this stipulation, judgment of dismissal with prejudice was made, entered, and filed on August 8, 1947.

On April 17, 1948, respondent Keane filed a motion for an order striking said judgment of dismissal from the records and files and reinstating the action. This motion, by its terms, was based upon his affidavit filed therewith, the records and files of the action, and oral testimony to be introduced upon the hearing.

The affidavit referred to, in effect, sets forth that Keane was induced to dismiss the action by certain false and fraudulent representations and promises by Allen, and as a part thereof to enter into an agreement of settlement and for the appointment of trustees to liquidate certain partnership assets for the benefit of the creditors, which agreement and promises Allen did not intend to carry out, but were fraudulently made by him to obtain the dismissal.

The motion to vacate was served upon Allen, individually and as President of Lexington Silver-Lead Mines, Inc. and Coeur d'Alene Consolidated Silver-Lead Mines, Inc., respectively, in Spokane, Washington, where he resided, and upon attorneys, W. F. McNaughton and Therrett Towles, who had appeared for him individually and in his said representative capacities in the original action.

Allen, individually and in the representative capacities mentioned, then moved to quash the service of the motion by two special appearances, one by H. S. Sanderson, an attorney of Coeur d'Alene and another by W. F. McNaughton and Therrett Towles. The motions to quash were based upon affidavits to the effect that Allen was a non-resident of Idaho; that he was served outside the State of Idaho; that Therrett Towles and W. F. McNaughton were not his attorneys and had not been since the dismissal of the action; that they had no authority to be served for him; and that by reason of such facts, the services were void.

The motions to quash came on for hearing May 7, 1948. Towles, McNaughton, and Sanderson appeared specially and only for the purposes of their motions. The court denied the same and struck the special appearance of H. S. Sanderson from from the records and files.

The court then proceeded to hear the plaintiff on his motion to strike the judgment and reinstate the action, and entered an order granting the same.

Allen, individually and in said representative capacities, has appealed from the order denying his motions to quash and all the other defendants to the original action, except B. W. Porter, who was not served with summons and never appeared in the original action, have appealed from the order striking the judgment and reinstating the action.

We will consider first the appeal of Allen. He assigns as error the denial of his motions to quash and the striking of the special appearance of H. S. Sanderson.

This court has recognized that a special appearance for the purpose only of making a motion to quash the service is the proper method to attack the validity thereof and to raise the question of the...