Kerns v. McAulay

• Decision Date: 24 June 1902
• Citation: 69 P. 539,8 Idaho 558
• Parties: KERNS, RECEIVER, v. McAULAY ET AL
• Court: Idaho Supreme Court

69 P. 539

8 Idaho 558

KERNS, RECEIVER, v. McAULAY ET AL

Supreme Court of Idaho

June 24, 1902

Syllabus by the Court.

1. A state court cannot legally enter a personal judgment against a nonresident in the absence of personal service or personal appearance.

2. Where service of summons on a nonresident defendant is made by publication, and his property within the state is attached, and a personal judgment thereafter entered, the judgment is valid as against the property attached, but no further.

3. There is no statute in this state requiring the judgment in a case like the one at bar to recite that an execution shall issue against the attached property; that it is a judgment in rem, and only valid as against the property attached.

4. Under each subdivision, 1 and 2, of section 4303, Rev. St the affidavit for an attachment must state amount of the indebtedness sought to be recovered, over and above all legal set-offs or counterclaims.

5. In an affidavit for an attachment against the property of a nonresident, it is not absolutely necessary to aver therein that the defendant is a nonresident, provided the affidavit shows that the debt is not secured.

6. The provisions of said section do not, in terms, require the affidavit to state that the indebtedness is due, but by necessary implication it clearly requires that to be done.

7. Under the provisions of section 4229, Rev. St., a motion may be made to vacate and set aside a judgment within six months after the adjournment of the term at which such judgment was rendered.

8. A court of general jurisdiction is presumed to have acted regularly and as prescribed by law, unless the contrary is show by the record.

APPEAL from District Court of Shoshone County.

Affirmed, with costs.

W. W Woods and W. E. Borah, for Appellant.

The affidavit for attachment states facts having a legal tendency to make out a proper case in all its parts for the issuance of attachment process. It recites that defendants are indebted to plaintiff in a certain sum, the probative facts showing a contract for the direct payment of money, and that the payment of the same had not been secured. The lower court had authority to determine whether the affidavit conformed to the requirements of the statute. The decision of the case was the exercise of jurisdiction; it was a declaration that the affidavit was sufficient. Such a judgment is binding and remains in full force until reversed. (Ex parte Watkins, 3 Pet. 193, 7 L. ed. 650, opinion by Chief Justice Marshall.) There can be no judicial inspection behind the judgment save by appellate power. (Grignon's Lessee v. Astor, 2 How. 319, 11 L. ed. 283.) "When the proof has a legal tendency to make out a proper case in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process will be valid until it is set aside by a direct proceeding for that purpose. In one case the court acts without authority; in the other it only errs in judgment upon a question properly before it for adjudication. In one case there is a defect of jurisdiction; in the other, there is only an error of judgment. Want of jurisdiction makes the act void; but a mistake concerning the just weight of evidence only makes the act erroneous, and it will stand good until reversed." Drake on Attachments, sec. 89; Kleber's Void Judicial and Execution Sales, sec. 45.) "The affidavit for attachment is preliminary. It may be defective, but when the writ is issued and levied the affidavit has served its purpose." (Quoting from decision in Cooper v. Reynolds, 10 Wall. (U. S.) 319.) Jurisdiction being obtained over the subject matter, no error in its exercise can make the judgment void. (Freeman on Judgments, sec. 135; Wells on Res Adjudicate and Stare Decisis, sec. 561; Kmpe's Lessee v. Kennedy, 5 Cranch (U. S.), 173; Cooley's Constitutional Limitations, sec. 408.) "When the attachment lien is merged in a judgment a mere irregularity is no ground for vacating a judgment. The judgment is final until reversed on appeal." (Cooper v. Reynolds, 10 Wall. (U. S.) 308; Matthews v. Densmore, 109 U.S. 216, 3 S.Ct. 126; Ludlow v. Ramsey, 11 Wall. (U. S.) 581, 588; Voorhees v. Bank of United States, 12 Dec. Sup. 193.) "The indebtedness to plaintiff is the principal element required in the affidavit, and when that appears by direct statement and there is nothing in the affidavit inconsistent with such statement of indebtedness, the affidavit should be held sufficient." (Bank of California v. Boyd, 86 Cal. 386, 25 P. 20; Wheeler v. Farmer, 38 Cal. 215; Weaver v. Hayward, 41 Cal. 117; Dunn v. Mackey, 80 Cal. 104, 22 P. 64; Simpson v. McCarthy, 78 Cal. 175, 12 Am. St. Rep. 37, 20 P. 406.) "The power of courts to set aside judgments after the lapse of the term is subject to settled principles, and the action of courts, if not authorized by these principles, is susceptible of review and reversal in the appellate courts." (Huntington v. Finch, 3 Ohio St. 445; Henderson v. Gibson, 19 Md. 234.) "Where statutory grounds for vacating a judgment provided, they must exist, and the means for vacating followed." (Black on Judgments, sec. 334; Norton v. Atchison etc. R. R. Co., 97 Cal. 338, 33 Am. St. Rep. 198, 30 P. 585, 32 P. 452.) "A motion to open or vacate a judgment should be made within six months after the rendition of the judgment." (Bunnell etc. Inv. Co. v. Curtin, 5 Idaho 652, 51 P. 767; Bibend v. Kreutz, 20 Cal. 110; Dyerville Mfg. Co. v. Heller, 102 Cal. 615, 36 P. 928; Idaho Rev. Stats., sec. 4229.)

Charles E. Miller, W. B. Heyburn and E. M. Heyburn, for Respondents.

A personal judgment cannot be rendered against a nonresident, served only by publication. Such service is not "due process of law," and is void. (Pennoyer v. Neff, 95 U.S. 714; Hart v. Sansom, 110 U.S. 151, 3 S.Ct. 586; Freeman v. Alderson, 119 U.S. 188, 7 S.Ct. 165; Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557; Dull v. Blackman, 169 U.S. 243, 18 S.Ct. 333; Dewey v. Des Moines, 173 U.S. 203, 19 S.Ct. 379.) An attachment of the property of the defendant within the jurisdiction of the court, although a proceeding in rem, will not support a personal judgment against a nonresident person upon whom personal service has not been had. (Exchange Bank v. Clement, 109 Ala. 280, 19 So. 817; Pullman etc. Co. v. Harrison, 122 Ala. 149, 82 Am. St. Rep. 68, 25 So. 697; Cudabac v. Strong, 67 Miss. 709, 7 So. 544; Griffith v. Mill Har. Co. , 92 Iowa 634, 54 Am. St. Rep. 573, 61 N.W. 243; White v. Johnson, 27 Or. 282, 50 Am. St. Rep. 726, 40 P. 511; Louisville R. R. Co. v. Nash, 118 Ala. 477, 72 Am. St. Rep. 181, 23 So. 825; South. Ry. Co. v. Ward, 123 Ala. 400, 82 Am. St. Rep. 129, 26 So. 234; Lutz v. Kelly, 47 Iowa 307; Smith v. Griffen, 59 Iowa 409, 13 N.W. 423; Cassidy v. Woodward, 77 Iowa 354, 42 N.W. 319.) If an affidavit for attachment is defective in not setting out all that the statute requires, the court has no jurisdiction to issue an attachment. (Murphy v. Montandon, 3 Idaho 325, 35 Am. St. Rep. 279, 29 P. 851; Willman v. Friedman, 3 Idaho 734, 35 P. 37; Vollmer v. Spencer, 5 Idaho 57, 51 P. 609; Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669; Cross v. McMaken, 17 Mich. 511, 97 Am. Dec. 203; Sharpless v. Ziegler, 92 Pa. 467; Fisk v. French, 114 Cal. 400, 46 P. 161.) If the nonresidence of the defendant is not set out and sworn to clearly in the affidavit, the attachment and judgment are illegal and void. (De Leon v. Heller, 77 Ga. 740; Staples v. Fairchild, 3 N.Y. 41; Cantrell v. Letwinger, 44 Miss. 437; Conolly v. Woods, 31 Kan. 359; Davis v. Eppinger, 18 Cal. 378, 79 Am. Dec. 184; Balk v. Harris, 122 N.C. 64, 30 S.E. 318; S. C., 124 N.C. 467, 70 Am. St. Rep. 606, 32 S.E. 799.) "It must appear affirmatively by affidavit as the basis of such proceeding (attachment) when the defendant is a nonresident, that he has property in said state. (Wilson v. Seligman, 144 U.S. 41, 12 S.Ct. 541; Bach v. Johnson, 110 N.C. 114.) An examination of the certified transcript shows that Epstein's affidavit does not aver that Balk had any property of any description in Maryland, but merely that he was a nonresident of the state. The Maryland court, therefore, acquired no jurisdiction upon which an order affecting Balk could be issued, and this being a jurisdictional defect, the judgment of the Maryland court can be collaterally attacked in this proceeding." (Pennoyer v. Neff, supra; Springer v. Shavender, 118 N.C. 33, 54 Am. St. Rep. 708, 23 S.E. 976.) The entry of a personal judgment is an abandonment of waiver of the attachment lien. (Gilbert v. Gilbert, 33 Mo.App. 259; Schieb v. Baldwin, 22 How. Pr. 278; Amyett v. Bachhouse, 7 N.C. 63; Perry v. Mendenhall, 57 N.C. 157; Wasson v. Cone, 86 Ill. 46; Lowry v. Magee, 75 Ind. 508; Smith v. Scott, 86 Ind. 346; Sannes v. Ross, 105 Ind. 558; United States Mtg. Co. v. Henderson, 111 Ind. 24.) The personal judgment was absolutely void. It should have been in rem only, and should have directed the sale of the attached property. A personal judgment rendered against an absconding or nonresident debtor, upon service by publication, is absolutely void, and a sale of real estate thereunder is unauthorized and illegal. (Lutz v. Kelly, 47 Iowa 307; Smith v. Griffen, supra; Cassidy v. Woodward, supra.) Effect of abandonment: Where an attachment is abandoned the entire proceeding becomes a nullity. (Pierce v. Meyers, 28 Kan. 364; French v. Stanley, 21 Me. 512; Cook v. Love, 33 Tex. 487.) The proper course to vacate a void judgment is by motion which may be made at any time. (People v. Greene, 74 Cal. 400, 5 Am. St. Rep. 448, 16 P. 197; Dunbar v. Commissioners, 5 Idaho 407, 49 P. 409; Ex parte Grenshaw, 15 Pet. 119; Harris v. Hardeman, 14 How. 334; United States v. McKnight, 1 Cranch, 84.)

SULLIVAN J. Qu...