Lynch v. Collins, Case Number: 15224

• Court: Supreme Court of Oklahoma
• Citation: 106 Okla. 133,233 P. 709,1925 OK 108
• Docket Number: Case Number: 15224
• Parties: LYNCH et al. v. COLLINS et al.
• Decision Date: 10 February 1925

1925 OK 108
233 P. 709
106 Okla. 133

LYNCH et al.
v.
COLLINS et al.

Case Number: 15224

Supreme Court of Oklahoma

Decided: February 10, 1925

Syllabus by the Court.

¶0 The defendant against whom a judgment has been rendered by default upon service by publication is not entitled to have the judgment set aside under the provisions of section 256, Compiled Statutes 1921, if the copies of the publication notice and of the petition were mailed to the defendant at his place of residence, or place of business, according to the provisions of section 252, Compiled Statutes 1921. The term "other service," as used in section 256, includes the act of mailing copies of the notice of publication and of the petition to the defendant according to the provisions of section 252, Compiled Statutes 1921.

A judgment of a court of general jurisdiction is not subject to attack, collaterally, unless the judgment is void upon its face. The judgment of a court is void upon its face where the court is not granted jurisdiction to try the cause, as where a county court should enter its judgment ordering the foreclosure of a mortgage upon real estate.

The judgment of a court of general jurisdiction is merely voidable where service has not been obtained upon the defendant in the manner prescribed by law, or the defendant has been denied his day in court for the lack of service, as is prescribed by law in relation to the particular action. Such errors, occurring in the course of the trial of a cause, over which the court has jurisdiction of the subject-matter, are termed "lack of due process of law." The judgment may be attacked, collaterally, by the defendant as against the plaintiff, and those claiming under the plaintiff, with actual notice of the failure to obtain service in the cause upon the defendant as prescribed by law, as where the return of the officer recites personal service upon the defendant, which, in fact, was not made as returned by the officer.

Record examined; held, to support judgment in favor of the defendants in error.

Additional Syllabus by Editorial Staff.

Service by publication in all actions under Comp. St. 1921, § 250, stands upon same plane as service by publication in divorce proceedings under section 503.

T. C. Wilson, of Lexington, Va., and Bernard A. Gow, of Big Cabin, for plaintiffs in error.

O. L. Rider and J. W. Bashore, both of Vinita, for defendants in error.

STEPHENSON, C.

¶1 A. Collins and Cornelia Collins commenced their action against the plaintiffs in error, and other defendants, to quiet title in certain real estate in favor of the plaintiffs and against the defendants.

¶2 Two of the plaintiffs in error were minors at the time of the rendition of the judgment to quiet title, and one is now a minor. Service was obtained upon the plaintiffs in error by publication. The attorney for the plaintiffs filed his sworn affidavit in the cause to the effect that he had mailed copies of the publication notice and of the petition to the plaintiffs in error, at Coffeyville, Kan., recited to be the place of residence of the parties. Default was made by the plaintiffs in error, and in the trial of the cause judgment was rendered for the defendants in error herein and against the plaintiffs in error on March 23, 1920, quieting title as against the latter.

¶3 The judgment of the court quieting title recited that legal service was had upon all the defendants, and that the minors in said cause appeared by guardian ad litem duly appointed by the court. The plaintiffs in error filed an application in the cause on January 23, 1923, to set aside the judgment and to be permitted to defend in the cause. The application to set the judgment aside was based upon the following grounds:

(1) That the defendants were entitled to have the judgment set aside under the provisions of section 256, Compiled Statutes 1921, for the reason that the defendants did not receive actual notice of the pendency of the cause prior to judgment, and that application to set aside the judgment was made within three years from the date of the rendition of the judgment.
(2) That the judgment quieting title in favor of the plaintiffs and against the defendants was void for the reason that the plaintiffs claimed title to the real estate through a void guardian's deed, purporting to sell and convey the interest of the defendants in the real estate.

¶4 No equitable questions are presented by the attack on the judgment and in the appeal. The questions involved in this appeal are to be determined by the rules of law and statutes involved.

¶5 The second ground assigned by the plaintiffs in error to set aside the judgment is a collateral attack. The judgment of a court of general jurisdiction is not subject to collateral attack, unless the judgment is void upon its face. If the judgment is void upon its face, it is subject to attack, collaterally, between the parties, or between the parties and any person who claims an interest in the subject-matter through any of the parties to the action. The judgment of a court of general jurisdiction will appear void upon its face, if the court is not granted jurisdiction by the Constitution or statutes to try the particular cause, as where a county court should enter a judgment foreclosing a real estate mortgage. There are two propositions involved in the trial of the cause: The authority of the court to try the particular action, and the trial of the cause according to the rules of law as applicable to the particular case. It is the consideration of errors of the latter class in a collateral attack, which, sometimes, leads to confusion by reason of the use of the term "want of jurisdiction." Strictly speaking, the term "want of jurisdiction" relates to a lack of authority on the part of the court to adjudicate the subject-matter involved in the action, as where a county court should undertake to foreclose a real estate mortgage.

¶6 There are two prerequisites for a judgment to be valid;

(1) That the court has jurisdiction of the subject-matter.
(2) That the defendant has been served with notice as prescribed by law of the pendency of the action against him.

¶7 The failure of the plaintiff to cause service to be made upon the defendant, as is prescribed by law, may be termed, more properly, a "lack of due process of law," rather than a lack of jurisdiction to adjudicate the subject-matter involved in the action. The failure of the plaintiff to cause personal service to be had upon the defendant in a personal action, as is prescribed by law, renders the judgment, merely, voidable between the parties and those having actual notice of the defect. The judgment in such a case is merely voidable between the parties and those having notice for the reason that the defect is not reflected in the judgment, and the assignee or grantees of a party to the action would take the interest of the grantor without notice of the defect. McDougal v. Rice, 79 Okla. 303, 193 P. 415; Mellon v. St. Louis Union Trust Co., 240 F. 359, 153 C. C. A. 285.

¶8 The judgment of a court of general jurisdiction is entitled to the presumption that all legal acts have been done to give validity to the judgment, unless the contrary affirmatively appears from the record. Therefore, in an action where the record is silent as to service, it is presumed...