Lende v. Wiedmeier

• Decision Date: 21 September 1970
• Docket Number: No. 8611,8611
• Citation: 179 N.W.2d 736
• Parties: Floyd LENDE, Plaintiff and Appellant, v. Andrew WIEDMEIER, Lorraine Wiedmeier, Joseph Scherr, and Diane Scherr, Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 736

179 N.W.2d 736

Floyd LENDE, Plaintiff and Appellant, v. Andrew WIEDMEIER, Lorraine Wiedmeier, Joseph Scherr, and Diane Scherr, Defendants and Respondents.

Civ. No. 8611.

Supreme Court of North Dakota.

Sept. 21, 1970.

John T. Paulson, Valley City, for plaintiff and appellant.

Sproul, Fitzner, Lenaburg & Fitzner, Valley City, for defendants and respondents.

Syllabus by the Court

1. Under Rule 56(c), North Dakota Rules of Civil Procedure, the moving party is entitled to summary judgment it is appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

2. A judgment rendered by a court of general jurisdiction, having jurisdiction of the parties and of the subject-matter, imports absolute verity. So long as it stands, it may not be attacked collaterally.

3. Rule 60, North Dakota Rules of Civil Procedure, provides for relief from a judgment entered against a aprty, for reasons of mistake, inadvertence, surprise, or excusable neglect. A motion to set aside a judgment for any of these reasons must be made within a reasonable time, which shall be not more than one year after entry of such judgment.

4. An attack upon a former judgment in a subsequent action constitutes a collateral attack upon such prior judgment of the court. Such attack is ineffectual unless the record of the original action shows that the court had no jurisdiction to enter the judgment.

5. For reasons stated in the opinion, the summary judgment entered by the district court is affirmed.

STRUTZ, Judge.

This is an appeal from a summary judgment entered in this action on motion of the defendant. The facts of the case are relatively simple, and are as follows:

--The appellant and his wife (who is not a party to the present action) executed a mortgage to the defendants Wiedmeier on September 21, 1960. The mortgage was given on 10.4 acres, more or less, of land described therein by metes and bounds.

--In May 1964, the mortgagees commenced foreclosure of such mortgage for nonpayment of the sums secured thereby. The mortgagors filed their answer in the foreclosure proceeding, but thereafter permitted judgment of foreclosure to be entered by default. Notice of entry of such judgment was served upon the attorney for the mortgagors on December 18, 1964. No appeal was taken from such judgment.

--Following the entry of judgment of foreclosure, sheriff's sale of the premises was held on January 19, 1965, and the property was bid in by the mortgagees. The period of redemption from such foreclosure sale expired, and thereafter the property was sold by the purchasers to the defendants Scherr. Shortly after such sale to the defendants Scherr, and more than three years after the service of notice of entry of judgment upon the mortgagors in the foreclosure action, the plaintiff, one of the mortgagors, commenced this action to modify the description of the proeprty as given in the mortgage and for a modification of the judgment accordingly. The defendants moved for summary judgment on the pleadings, and their motion, after hearing, was granted by the trial court. From summary judgment so entered, the plaintiff appeals to this court.

Rule 56, North Dakota Rules of Civil Procedure, provides for summary judgment. It gives a party against whom a claim is asserted the right to move, at any time, with or without supporting affidavits, for a summary judgment in his favor. This rule further provides that summary judgment shall be rendered--

'* * * if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * * ' Rule 56(c), N.D.R.Civ.P.

The sole question before us on this appeal is whether there was an issue of fact in this action. If there was, then summary judgment should not have been granted, regardless of the merits of the action. Temme v. Traxel, 102 N.W.2d 1 (N.D.1960); Mondy v. Gjesdal, 123 N.W.2d 33 (N.D.1963); Wolff v. Light, 156 N.W.2d 175 (N.D.1968).

Judgment of foreclosure was entered in the foreclosure case in December of 1964. No appeal was taken by Lende, who was a party to the foreclosure action and who is the plaintiff in this action, and the judgment of foreclosure became final.

Generally, a judgment may not be collaterally attacked by a party to the action in which it is entered. Hull v. Rolfsrud, 65 N.W.2d 94 (N.D.1954). The only exception to this rule is in cases where the court lacks jurisdiction to enter such judgment and where the lack of jurisdiction is obvious from the record. The court, in Jensen v. Schwartz, 90 N.W.2d 716 (N.D.1958), held that a judgment entered by a court of general jurisdiction, having jurisdiction of the parties and of the subjectmatter, imports absolute verity. So long as it stands, it may not be attacked colaterally. In that case, we also said:

'An attack on the former judgment in a subsequent action constitutes a collateral attack upon such prior judgment of the court. Such attack is ineffective unless the record of the original action shows the court had no jurisdiction.' Syllabus, par. 2.

We believe that these principles are applicable to the relevant facts established in the case before us. Judgment was entered in the foreclosure...