Kinney v. Owens

• Decision Date: 15 April 1907
• Citation: 89 P. 573,15 Wyo. 387
• Parties: KINNEY v. OWENS, SHERIFF
• Court: Wyoming Supreme Court

89 P. 573

15 Wyo. 387

KINNEY v. OWENS, SHERIFF

Supreme Court of Wyoming

April 15, 1907

ERROR to the District Court, Weston County, HON. CARROLL H PARMELEE, Judge.

Proceeding under the statute to vacate a judgment. The facts are stated in the opinion.

Affirmed.

M. B Camplin, for plaintiff in error.

The court had no jurisdiction to render the judgment upon which the execution was issued and herein sought to be vacated, for the reason that the Union Meat Company, against whom the judgment was rendered jointly with the other defendants in that action, was not served with summons; and the service upon the plaintiff in error Kinney was insufficient as shown by the officer's return on the summons, and for the further reason that the plaintiff was incapacitated from maintaining the action. Unless legal notice is given of a suit jurisdiction does not attach. (19 Ency. Pl. & Pr., 572 704-5; 11 id., 842; 12 id., 179; 6 id., 24, 25, 27, 38, 39; Caldwell v. State, 12 Wyo. 213; State ex rel. v. Board, &c., 7 Wyo. 487; Wade on Notice (3d Ed.), 1137, 1138; 1 Kinkead Code Pl., 46.) Whatever is omitted from an officer's return will be presumed not to have been done. (Garbanati v. Beckwith, 2 Wyo. 213; Mitchell v. Greenwald, 43 Miss. 167; Moore v. Coats, id., 225; Naron v. Gwin, id., 346; Rankin v. Dulaney, 43 Miss. 197.) The law must be complied with as to service and return. (13 Wis. 569; Wade on Notice, 1293, 1338; Read v. French, 28 N.Y. 285; Johnson v. Delbridge, 35 Mich. 437; Gargan v. School Dist., 4 Colo. 57; Harris v. Sargent (Ore.), 60 P. 608; Sanford v. Edwards, 47 P. 212; Crapp v. Dodd, 17 S.E. 666; Linot v. Rowland, 51 P. 687; 4 O. Dec., 447; Bratton v. Allston, 2 O. Dec., 393; Gilbough v. Keller, 11 Phila., 364; Graves v. Robertson, 22 Tex. 130; Willie v. Thomas, id., 175; Stevens v. Price, 16 Tex. 572; Holliday v. Steel, 65 Tex. 388; Pinney v. Prov., &c., Co., 50 L. R. A., 578.)

It is true that the following language is used by the court in its findings: "The court finds that the defendants have been regularly served as provided by law," whatever that may mean; but here again we must imagine that it means regularly served "with summons" as provided by law. But give it the best construction, the finding is disproved by the record. The record controls. (Wade on Notice, Sec. 1373; Mickel v. Hicks, 19 Kan. 578; Crow v. Meyersiek, 88 Mo. 411; Coan v. Clow, 83 Ind. 417; Newcomb v. Dewey, 27 Iowa 381; Rinehart v. Lugo, 24 P. 1089; Neff v. Pennoyer, 3 Sawy., 274; Pardon v. Dwyer, 23 Ill. 572; Clod v. Inhabitants, 86 Mo. 357.)

The defendants were sued jointly; the judgment is joint; it is alleged one made the note and the other signed and guaranteed it; the record shows no service of summons on one of the defendants; it does not show such defendant not found; shows no continuance as to such defendant; but a joint judgment against both. For these reasons the joint judgment is void as to both defendants. (Gargan v. School District No. 15, 4 Colo. 58; Hutchinson v. Sine, 105 Ill.App. 638; Williams v. Chalfant, 82 Ill. 218; Bowmans v. Mize, 42 Ky. 320; Apelgate v. Jacoby, 39 Ky. 206; Alston v. Bank, 9 Ark., 455; Haralson v. McArthur, 87 Ga. 478; Jackson v. Hulse, 6 Mackey, 548; Dorsett v. Crew, 1 Colo. 18; Grace v. M. Co., 62 Ill.App. 149; Blanchard v. Gregory, 14 O., 413; Hutchins v. Lockett, 39 Tex. 165; Langley et al. v. Grin, 1 Colo. 71; Lenning v. Burgoyne, 1 Handy, 77, 79; 1 Ency. Pl. & Pr., 858.)

The petition in the original action did not state facts sufficient to constitute a cause of action, thereby rendering the judgment void. (6 Ency. Pl. & Pr., 45-48; Chicago v. Elec. R. Co., 116 Ill.App. 253; U. S. v. Bell, 135 F. 336; Hoyt v. Macon, 2 Colo. 113; Thigpen v. Mundine, 24 Tex. 282; Hubert v. New Orleans, 130 F. 21.) The statute requires the plaintiff to be named in the summons as well as the defendant. Unless this is done the judgment is a nullity. (Lyman v. Milton, 44 Cal. 630; Smith v. Aurich, 6 Colo. 392; Patton v. Campbell, 74 S.W. 1092; Henderson v. Ballantine, 4 Cow., 549; 4 Curr. Law, 292.) The record and the facts show fraud in procuring the judgment.

Stotts & Blume, for defendant in error.

It is necessary in a case of this kind to make a prima facie showing of a valid defense. (6 Ency. of Pl. & Pr., 181; White v. Hinton, 3 Wyo. 753; Galvin v. Reed (Neb.), 102 N.W. 455; Gilbert v. Morrow, 54 Neb. 77; Delaney v. Grain Co. (Neb.), 99 N.W. 660; Baldwin v. Burt (Neb.), 96 N.W. 401.) As to the service the plaintiff in error has no ground on this point. He came into the lower court, and petitioned to have the judgment set aside for various reasons, including the ground of fraud, and that the judgment had been prematurely entered. Such an appearance waives all irregularity in the service, and makes the judgment good, so far as notice is concerned. (Black on Judg., 324; Yorke v. Yorke (N. D.), 55 N.W. 1095; Rivers v. Olmstead, 66 Iowa 166; Marsden v. Saper, 11 Ohio St. 503; 2 Ency. Pl. & Pr., 654-5; Life Asso. v. Lempe, 19 P. 337; Mayer v. Mayer (Ore.), 39 P. 1002; Leake v. Gollogly (Neb.), 52 N.W. 825.)

A merely defective notice cannot be questioned on collateral attack. (Black on Judg., 223, 224; Creveling v. Moore, 39 Mich. 563; Gould v. Casteel, 47 Mich. 604; Low v. Judge, 61 Mich. 35; Irions v. Keystone Mfg. Co., 61 Iowa 406; Jones v. Danforth (Neb.), 99 N.W. 495; Friend v. Green, 43 Kan. 167; Campbell Press v. Marder (Neb.), 69 N.W. 774; Gandy v. Jolly (Neb.), 53 N.W. 658; Baker v. Jamison, 73 Iowa 698; County Bank v. Jack (Cal.), 83 P. 705.) Whatever errors there may have been in the summons or in the return, the judgment is at most only irregular, of which the plaintiff in error cannot at this time take advantage. A judgment void as against one party, for want of jurisdiction, is valid as against one over whom jurisdiction has been obtained. (Newburg v. Munshower, 29 Ohio St. 617; Douglass v. Massie, 16 O., 271; Ash v. McCabe, 21 Ohio St. 181; Jamieson v. Pomeroy, 9 Pa. St. 230; Shallcross v. Smith, 81 Pa. St. 132; Kitchens v. Hutchins, 44 Ga. 620; Green v. Beales, 2 Caines, 254; Brittin v. Wilder, 6 Hill., 242; St. John v. Holmes, 20 Wend., 609; York Banks Appeal, 36 Pa. St. 460; North v. Mudge, 13 Iowa 498; Winchester v. Beardin, 10 Hump., 247; Collins v. Knight, 6 Neb. 406; Remington v. Cummins, 5 Wis. 138; Bailey v. McGinnis, 67 Mo. 362; Cheek v. Pugh, 19 Ark. 574; Murphy v. Orr, 32 Ill. 489; Rickerson v. Richardson, 26 Cal. 149; Wood v. Olney, 7 Nev. 109.) Black on Judgments (Sec. 239) lays down the rule that where the judgment is against "the defendants" without specifying them, and without any appearance of those not served, the judgment will be understood to be only against those who were duly served. (11 Ency. Pl. & Pr., 952-3.) Pleadings are liberally construed after judgment or verdict. (Brown v. Helsey (Neb.), 98 N.W. 187; Marsh v. State (Neb.), 96 N.W. 520; Peterson v. Hopewell, 55 Neb. 670; Montesano v. Blair (Wash.), 40 P. 731; 6 Ency. Pl. & Pr., 281; 22 id., 939; Hake v. Halverstadt, 22 Neb. 421; Powers v. Powers, 20 Neb. 529; Keaton v. Keaton, 74 Mo.App. 174; Sorenson v. Sorenson (Neb.), 94 N.W. 540; Ins. Co. v. Dokks, 71 Minn. 533; Sherwood v. Sioux Falls, 10 S.D. 405; Martin v. Graff, 10 S.D. 592; Smith v. Cowles, 123 Mich. 4; Hubbard v. Haley, 96 Wis. 578.)

That a petition does not state sufficient facts is not jurisdictional after judgment. (101 N.W. 73; 61 Wis. 107; 59 F. 742; 99 Cal. 374; 15 P. 911; 71 F. 151; 149 Mo. 572; 23 Mo.App. 604; 35 Ore. 85; 26 Ore. 38.) Though conditions precedent, such as demand and notice, etc., are not pleaded, the defect is cured by judgment. (Grant v. Bank (Neb.), 93 N.W. 185; Harkness v. McClain (Utah), 29 P. 964; Weighley v. Weir, 7 S. & R., 309; Spencer v. Overton, 1 Day, 183; Crocker v. Gilbert, 9 Cush., 131; Happe v. Saul, 2 Cal. 460; Bailey v. Clay, 4 Rand (Va.), 346; Bliss v. Arnold, 8 Vt. 252; Nicholaie Bros. v. Krimble (Ore.), 43 P. 865; Hendrick v. Selly, 6 Conn. 176; Martin v. Blodgett, 1 Aik. (Vt.), 375; Brauns v. Glenge, 130 Ind. 167.) Fraud is attempted to be here predicated merely upon alleged legal errors. That cannot be done. (17 Ency. L., 828.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

On May 31, 1904, in an action then pending in the District Court of Weston County, entitled, "The Bank of Newcastle, a corporation duly organized and doing business under the laws of the State of Wyoming, and Harry B. Henderson, State Examiner in charge, plaintiffs, vs. The Union Meat Company, a corporation duly organized under the laws of the State of Wyoming; Pit Aimonetto, John Giachnio, and Pete Kinney, defendants," a judgment was rendered by default in favor of the plaintiffs and against the defendants for $ 823 and costs. On January 20, 1905, an execution was issued on said judgment and placed in the hands of John Owens, sheriff of said county, who is the defendant in this proceeding, for service. Pete Kinney, one of the defendants in said action, who is plaintiff in this proceeding, commenced this proceeding to set aside and vacate said judgment. The petition to vacate said judgment was presented to the court commissioner of said county and an injunction was issued by him suspending further proceedings on said judgment and execution until the further order of the court, as provided in Section 3802, R. S. 1899. A general demurrer to the petition was filed by the defendant, but the record fails to disclose any ruling thereon, and the defendant filed an answer to the petition. On the trial the District Court found generally for the defendant, dismissed plaintiff's petition, dissolved the temporary injunction and rendered judgment against the plaintiff for costs, and he brings error.

This proceeding was brought, as...