Lawton v. Nicholas

• Decision Date: 06 June 1903
• Citation: 73 P. 262,12 Okla. 550,1903 OK 29
• Parties: LAWTON v. NICHOLAS, Sheriff, et al.
• Court: Oklahoma Supreme Court

73 P. 262

12 Okla. 550, 1903 OK 29

LAWTON v. NICHOLAS, Sheriff, et al.

Supreme Court of Oklahoma

June 6, 1903

Syllabus by the Court.

1. The fact of a judgment being excessive does not render such judgment void; it is at most only voidable as to such excess.

2. A summons made returnable more than 10 days from the date of its issue is not for this reason void, where the answer day is fixed in the summons at 20 days after the return day; and a judgment rendered thereon is not void, and cannot, for such irregularity, be enjoined.

3. A summons in an action for the recovery of money only should have indorsed thereon the amount for which judgment will be rendered if the defendant fails to appear. Summons without such indorsement is sufficient to give the court jurisdiction of the person and of the subject-matter, and the judgment rendered thereon is not void, but is voidable only, and execution to enforce such judgment cannot be enjoined.

Error from District Court, Custer County, before Justice Clinton F Irwin.

Action by J. W. Lawton against J. B. Nicholas and others. Judgment for defendants, and plaintiff brings error. Affirmed.

On the 8th day of November, 1892, H. E. Van Trees was elected county treasurer of G (now Custer) county, and on the 13th of December following duly qualified as such county treasurer having previously filed his bond in the sum of $25,000, with J. W. Lawton (the plaintiff herein) and several others thereon as sureties. The bond was accepted and approved by the county commissioners of said county, and thereupon said Van Trees entered upon his duties as such county treasurer and served as such for the term of two years, at which time his successor was elected and qualified. Van Trees, as such treasurer, made default in accounting for some of the moneys by him received, and in January, 1897, a suit was instituted in the district court of Custer county to recover such shortage, in which action the plaintiff herein was named as one of the defendants. A summons was issued in said action tested on the 3d day of March, 1897, made returnable March 15, 1897, and no indorsement was made on the back of the summons of the amount for which judgment would be taken if the defendant failed to appear, and defendant Lawton failed to appear. Such proceedings were thereafter had in that action that a judgment was therein rendered against all the defendants therein named, including this plaintiff, which judgment was brought to this court on appeal by defendants and the judgment therein affirmed. 7 Okl. 353, 54 P. 495. Thereafter execution was issued upon said judgment, and placed in the hands of the sheriff of said county, who was about to levy the same upon the property of the present plaintiff, J. W. Lawton, whereupon this action was instituted to enjoin the enforcement of said judgment, to have the same decreed to be void as to him, and to remove the cloud cast by such judgment upon the real estate by him owned. This action was commenced in the district court of Custer county against the sheriff and the county commissioners of said county, and to the petition therein filed defendants filed a general demurrer; and, the cause being presented upon the issues thus formed at the September, 1901, term, the demurrer was by the court sustained, from which action sustaining the demurrer the present appeal is taken.

The petition in the present case sets out the petition and proceedings in the case of the Territory v. Van Trees et al. in full, including the summons therein issued and served upon him, which summons reads as follows:

"Territory of Oklahoma, Custer County--ss. The Territory of Oklahoma to the Sheriff of Custer County, Greeting: You are here by commanded to notify J. W. Lawton that he has been sued in the District Court, within and for the County of Custer, in Territory of Oklahoma in the Second Judicial District of the Territory of Oklahoma and must answer the petition filed by the plaintiff, the Territory of Oklahoma, on or before the 10th day of April, 1897, or the said petition will be taken as true and judgment rendered accordingly. And return this writ on the 15th day of March, A. D. 1897.

"In witness whereof I have hereunto signed my name and affixed the seal of said court at my office in Arapahoe in said County this 3rd day of March, A. D. 1897. "J. H. Warren, Clerk of the District Court,

"By A. H. Latimer, Deputy."

Indorsements thereon: "Summons. Territory of Oklahoma, for the use of Custer County, Plaintiff, vs. H. E. Van Trees et al., Defendant. If the defendant fail to answer, the plaintiff will take judgment for ___ dollars, with interest at the rate of 7 per cent. per annum from the 7th day of January, 1895, and cost of suit.

"J. H. Warren, Clerk,

"By A. H. Latimer, Deputy.

"Note. If the defendant fails to appear judgment cannot be rendered for a larger amount and the costs (Gen. St. Kan. 1868, c. 80, § 59). Issued March 3rd, 1897."

And this, it is alleged, is the only summons or process issued or served upon him in that action, upon which the judgment therein was based. It is further alleged: That no appearance was entered in said cause by or on the part of the plaintiff herein, and that at the October, 1897, term of said court, a judgment was therein rendered and entered, which judgment is in the words and figures following, to wit: "Territory of Oklahoma for the use of the County of Custer, vs. H. E. Van Trees et al. In the District Court of the 2nd Judicial District of Oklahoma Territory, sitting in and for Custer county, 9th judicial day of the regular October, A. D. 1897, term of said court. Now comes this cause regularly for trial, and it appearing to the court, that it was necessary to examine the defendant H. E. Van Trees as a witness for the plaintiff, and required the examination of the account. The cause was referred to J. H. Warren as referee, and the referee having heard and examined the cause and made his report, which is examined by it, is by the court ordered that the report of the referee be and is hereby approved. Now, therefore, it is by the court ordered, adjudged and decreed that the plaintiff, the Territory of Oklahoma, for the use of the county of Custer, do have and recover judgment against the defendants, H. E. Van Trees, W. F. Cabaniss, G. E. Morris, Chas. Smith, P. H. Heard, Gille and Watts, ___ Gille, P. S. Watts, J. W. Lawton, W. J. Mathews, P. H. Gallion, F. U. Salyer, J. A. Vance, and each of them, for the sum of $1,100.00, with interest at the rate of 7 per cent. per annum from January 1st, 1893, making a total of $1,467.00 and cost of this action, taxed at the sum of $___, for all which let execution issue." That the original files in said cause are lost, and that said judgment appears on its face to be valid. That plaintiff herein is the owner of certain real estate situate in Custer county, Okl., to wit, lot 7, block 16, in the city of Arapahoe. That there has been issued an execution on said judgment, and the same is now in the hands of J. B. Nicholas, as sheriff of Custer county, aforesaid, and said sheriff is threatening and about to levy the same upon the property of the plaintiff, and to sell the same to satisfy the said execution.

To this petition defendants interposed a demurrer in the words following: "Now come the defendants by their attorneys, and demur to plaintiff's petition as filed herein, for the reason that the same does not state a cause of action to support the injunction and restraining order as therein prayed for, or authorize the granting of the same; wherefore defendants pray that said cause be dismissed, and that they be adjudged their costs herein." The cause coming on for hearing upon the issue thus made by the demurrer, judgment was rendered sustaining the demurrer and dismissing the action, and from this action the appeal is taken.

J. A. Smith, for plaintiff in error.

E. W. Wilcox, for defendants in error.

GILLETTE, J. (after stating the facts).

It is contended on behalf of the plaintiff in error in this case that the judgment complained of is void, and that, therefore, execution to enforce the same may be enjoined; and the grounds upon which he relies as a basis for this contention are threefold: First, that the judgment is excessive, being for the principal amount of indebtedness and interest from January 1, 1893, when it should have been (if for any sum) for the principal amount of the debt and interest from January 1, 1895, being, therefore, two years' interest in excess of what it should have been; second, that the summons issued in the case did not have indorsed thereon the amount for which the plaintiff would take judgment in case the defendant failed to appear; and, third, that the return day named in the summons was more than 10 days from the date of issue, having been issued on the 3d day of March, 1897, and made returnable on March 15, 1897, and the answer day being set for April 10, 1897.

We pass the question as to whether or not execution issued to enforce a void judgment may be enjoined, and content ourselves, for the purpose of determining this case, with a consideration of the question as to whether or not the defects complained of are sufficient to render the judgment void. The petition in this case sets forth only one ground for injunction, viz that the judgment complained of is void for want of jurisdiction of the person of defendant, on the ground that the summons issued was not indorsed with the amount for which plaintiff would take judgment in case of default; and this is the only question that the trial court had before it is determining the case. The fact that the judgment was excessive was not complained of in the petition passed upon, nor is there any complaint of the sufficiency of the...