O'Keefe v. Foster

• Citation: 5 Wyo. 343,40 P. 525
• Parties: O'KEEFE v. FOSTER, RECEIVER ET AL
• Decision Date: 29 May 1895
• Court: United States State Supreme Court of Wyoming

40 P. 525

5 Wyo. 343

O'KEEFE v. FOSTER, RECEIVER ET AL

Supreme Court of Wyoming

May 29, 1895

Amended petition filed in District Court December 23, 1892.

ERROR to the District Court for Laramie County, HON. RICHARD H SCOTT, Judge.

Action by Julia O'Keefe against Colin Hunter, administrator of the estate, and certain named persons as heirs, of George L Beard, deceased. The record contains an amended and supplemental petition alleging the execution and delivery to plaintiff, on April 1, 1891, by said decedent, of a certain promissory note for $ 2,000, and a mortgage to secure the payment of the same covering certain real estate in the County of Laramie. That the entire agreement was not expressed in said instruments, in that it was understood that the interest was to be payable monthly. That interest was not paid for the month of September, 1891, although it was demanded, and its payment was thereon promised; and that more than thirty days having elapsed since the same became due the whole principal sum was due and payable, according to the election of the plaintiff, in pursuance of the stipulations embraced in the mortgage. Payment of certain taxes by plaintiff was also alleged, the death of said Beard in November, 1891, the appointment of the administrator, and the relationship of the other defendants. Reformation of the note and mortgage was prayed for, as well as the foreclosure of the mortgage, and an order upon the administrator to pay any deficiency arising after a sale of the mortgaged property, out of the funds of the estate. No presentation of the demand to the administrator was averred. The defendants made default, and the case was tried upon said amended and supplemental petition and proof of plaintiff, the latter consisting of the mortgage and note and certain oral testimony not in the record. On May 24, 1893, judgment was rendered, by which the reformation was ordered as prayed for, the amount due to plaintiff was assessed at $ 2,342.35, the property was ordered sold and the proceeds thereof to be applied to the payment of the costs and expenses of the suit, and the amount due to plaintiff. Sale occurred, and was confirmed, and the deficiency, $ 1,524.77 and costs taxed at $ 77.65, was, by the court, on July 13, 1893, ordered to be paid by the administrator in due course of administration. The judgments aforesaid were rendered at the May term, 1893, of the district court. On September 2, 1893, Joel Ware Foster, as receiver of the Cheyenne National Bank, filed in said cause a motion to modify said judgments, setting forth that as such receiver he was a creditor of the estate of said decedent in the sum of $ 30,732.03, and that said plaintiff had wholly failed to present her claim to the administrator as required by law. The modification asked was that the judgments for deficiency and attorney's fees be vacated. Another like motion was filed by the same party, on the seventh day of October, 1893, alleging that said receiver was a judgment creditor of said estate in the sum aforesaid. Said motions were supported by affidavits, which also stated the insolvency of said estate. The motions were filed upon due notice, prior to the adjournment of the May term, at which the judgments were rendered, and were submitted to the court at that term. At the succeeding term the motion was sustained, and the judgments in favor of the plaintiff were modified by striking therefrom the order to the administrator to pay the deficiency and attorney fees. Exceptions were duly preserved and the plaintiff prosecuted error.

Judgment and decree affirmed.

W. R. Stoll, for plaintiff in error.

As the statutes specify the causes for which a court may modify its own judgment after the term, and also the procedure to secure the same, such causes must exist, and such method must be pursued, the cause not being one recognized at common law. (R. S., sec. 2701.) None of the statutory causes exist in the case at bar. The proceedings were not in accordance with the statute. (R. S., sec. 2705, 2707.) The court did not adjudge that there was a valid defense, as required by statute before a judgment can be vacated after the term. Neither was the procedure according to the common law. (1 Abb. L. Dict., 110-11; 1 Black on Judg., secs. 299, 300-3; Story's Eq. Pl., 403-412.) Foster had no interest in the controversy, and was not aggrieved by the decrees. A judgment cannot be vacated or modified after the term on the ground that it is erroneous as a matter of law. (1 Black on Judg., secs. 317, 329.) If the administrator neglected his duties in failing to defend, he may be liable on his bond to injured creditors. That gives them no right to seek a modification of the judgment. Plaintiff has a right to share in the assets of the estate after the foreclosure of her mortgage. (L., 1890-91, p. 291.) The record shows a presentation of the claim because it is a matter of judgment, and the journal does not disclose that the allegation of Foster was true. It is evident that the court based its modification upon the idea that a defective petition could be reached in the way attempted in this case. A stranger to a suit may not seek to modify or vacate a judgment except by a proceeding in the nature of a direct attack upon the judgment, making all the original parties parties to the new proceeding and showing that he is injured by the judgment. An administrator may waive the presentation of a claim; and a mortgage of record, or the commencement of suit within the time allowed for the presentation of claims, is a notice to the administrator, and no other presentation is necessary. (Estate of Cook, 14 Cal. 130; Williamson v. Anthony, 47 Mo. 299; North v. Walker, 66 Mo. 453; Stevens v. Bernays, 119 Mo. 143; Wernse v. McPike, 100 id., 476; Whitmore v. Sav. Un., 50 Cal. 145; More v. Calkins, 95 Cal. 435.)

Benjamin F. Fowler, and Baird & Churchill for defendant in error Foster.

The filing of the motions and submission to the court during the term of the judgments saved the right of defendant in error as to all modifications he might have obtained at that term although the decision on the motions was not given until the following term. (Smith v. Best, 42 Mo. 185; Phillips v. Ordway, 101 U.S. 745.) A motion to vacate filed at the same term as the judgment may be allowed at a subsequent term. (1 Black on Judg., sec. 310, and cases cited.) Judgments are under the plenary control of the court pronouncing them during the entire term at which they are rendered. (1 Black Judg., sec. 305, 153; Bronson v. Schulton, 104 U.S. 410; Barrett v. Tilton, 119 U.S. 637; Ins. Co. v. Nichols, 109 U.S. 232; Ryan v. Thomas, 104 Ind. 59; Goddard v. Ordway, 101 U.S. 745; Stahl v. Webster, 11 Ill. 511; Robinson v. Com'rs, 12 Md. 132; Oberdam v. Comegys, 15 Ind. 496; Ruthford v. Pope, 15 Md. 579; Townsend v. Wyman, 31 id., 247; Kelly v. High, 29 W.Va. 381; Bank v. Jarvis, 26 id., 785; Martin v. Kehan, 2 Colo., 614; Patterson v. Josselyn, 43 Miss. 373; McKnight v. Strong, 25 Ark. 295; Ralston v. Latham, 18 Ind. 303; Taylor v. Lusk, 9 Ia., 444; Vollard v. Wilcox, 17 Neb. 46; Wolmerstadt v. Jacobs, 61 Ia. 372; Memphis v. Brown, 94 U.S. 715; Ballard v. Purcell, 1 Nev., 342; Green v. Ry., 11 W.Va. 685; Richardson v. Howk, 45 Ind. 451.) Even after the term, the court may correct a judgment to conform to the law. (Est. of Scholder, 46 Cal. 316.) The injury to the creditor arose as follows: 1. He was a judgment creditor. 2. The estate was insolvent. 3. By the judgment complained of plaintiff in error was given, improperly, attorney fees, and was improperly permitted to participate in the general assets. Presentation of the claim was a necessary allegation of the petition. (Ellison v. Halleck, 6 Cal. 386; Harp v. Callahan, 46 id., 222; Pechaud v. Rinquet, 21 id., 76.) The receiver of the bank, having a direct interest in the judgment, although a stranger to the record, had the right to apply for a modification. (McWillie v. Martin, 25 Ark. 556; Robinson v. Com'rs, 12 Md. 132; Bernard v. Douglas, 10 Ia. 370; Smith v. Schwed, 9 F. 483; McClurg v. Schwartz, 87 Pa. 521; Lowber v. Mayor, etc., 26 Barb., 262.) But the intervenor may be regarded as an amicus curiae. The court of its own motion could have modified the decree. The allowance of the claim of the receiver by administrator had same effect as a judgment. (Magran v. McGlynn, 25 Cal. 420; In re Hidden, 23 id., 362; Beckett v. Selover, 7 id., 215; Walkerly v. Bacon, 85 id., 137; Laws, 1890-91, ch. 14, sec. 13.) If a claim of mortgagee is not filed, the latter can make no claim upon the general assets of an estate. (Andrews v. Morse, 51 Kan. 30; Sims v. Richardson, 32 Ark. 297; McClure v. Owens, id., 443; Moores v. Ellsworth, 22 Ia. 299; Bank v. Doe, 19 Vt. 463; Scammon v. Ward, 1 Wash., 179; McCallum v. Pleasants, 67 Ind. 542; Teel v. Winston, 22 Or. 489; Sav. Bank v. Connell, 65 Cal. 574; Anglo-Nev. Co. v. 90 id., 393; Bank v. Charles, 86 id., 322.) In the absence of presentation, waiver of recourse necessary to give jurisdiction of the suit to foreclose. More's Est. v. More, 33 Neb. 509; Stresgirth v. Regelman, 75 Wis. 212; Talbot v. Wordle, 19 id., 174; Partello v. Holton, 79 Mich. 372; Bullymore v. Cooper, 46 N.Y. 236; Partridge v. Hannum, 2 Metc., 569; Bank v. Charles, supra. The entire judgment was therefore void, and may be attacked in any proceeding, and even after the term. Fithian v. Monks, 43 Mo. 502; Reed v. Shum, 63 Ia. 378; 1 Black on Judg., sec. 307; Ladd v. Mason, 10 Or. 308; Bruce v. Strickland, 47 Ala. 192; Baker v. Barclift, 76 id., 414; In re College St., 11 R.I. 472.

R. W Breckons, for defendant in error, Hunter, administrator, contended that the administrator could not, and by failing to answer, did not waive the necessity of the...