Magin v. Pitts

• Decision Date: 28 February 1890
• Parties: MAGIN v PITTS ET AL.
• Court: Minnesota Supreme Court

43 Minn. 80

44 N.W. 675

MAGINvPITTS ET AL.

Supreme Court of Minnesota.

Feb. 28, 1890.

(Syllabus by the Court.)

1. An action may be maintained to set aside a judgment upon the ground that no process had been served, or jurisdiction acquired in any manner.

2. In such an action, it is not incumbent on the plaintiff to show, in addition to the want of jurisdiction, that upon the merits of the matter the claim involved in the judgment was unjust. Modifying an expression obiter in Heffner v. Gunz, 29 Minn. 108,12 N. W. Rep. 342.

3. Such an action is maintainable against the assignee of the judgment, if the plaintiff be not chargeable with laches.

Appeal from district court, Blue Earth county; SEVERANCE, Judge.

Action by Anton Magin against M. H. Pitts, Gaylord Lamb, and others, to set aside a judgment. From a judgment for plaintiff, defendant Lamb appeals.

Freeman & Pfau and B. D. Smith, (Hawes, Lomen & Scofield, of counsel,) for appellant.

Lorin Cray and J. L. Washburn, for respondent.

DICKINSON, J.

The defendant Lamb is the assignee of a judgment heretofore entered in the district court in favor of Pitts and others against Anton Magin. The plaintiff, alleging that no summons was ever served upon him in that action, that he did not appear therein, and did not know of the judgment until its enforcement was attempted, prosecutes this action to have the judgment set aside, and to enjoin its enforcement. It is conceded and claimed on both sides that this judgment is to be deemed as having been entered against this plaintiff, against whom the defendants were proceeding to enforce it when this action was commenced. The relief sought having been granted in this action, the defendant Lamb appealed from the judgment. The case is presented upon the pleadings, findings of the court, and the judgment, the evidence not being before us.

There is some controversy as to the meaning of the findings of the court. It appears that in the summons and complaint in the action in which the judgment in question was rendered, the person therein named as defendant was “Anthony Magin,” and the proof of service of the summons, by the affidavit of a person not having official authority to make such service, named Anthony Magin as the person served. The court found as a fact that the summons was served on Anthony Magin. There being a default to appear in that action, judgment was entered against “Anton Magin.” But the court further found that neither the summons nor complaint in said action were ever served on this plaintiff. Reading the findings of the court with regard to the issue made in the pleadings, they must be deemed to have the meaning that, while the summons was served upon a person named Anthony Magin, that person was not this plaintiff, and that no summons was ever served upon this plaintiff. The legal result is that the judgment was entered without jurisdiction having been acquired of the person of this planitiff; and, assuming him to have been the person against whom the judgment was entered, it was void. The court further finds that this plaintiff did not know of that judgment until just before the commencement of this action.

The appellant contends that in this action the judgment is assailed collaterally, and that this is not allowable. This is not a collateral, but a direct, attack upon the judgment. That is the very object of the action. It was not necessary to make the original judgment creditors parties to the action. The judgment having been assigned to Lamb, he stands in their place, and is the only party in interest.

An action is maintainable to set aside a judgment upon the ground that there was no jurisdiction for want of service of process. Ferguson v. Crawford, 70 N. Y. 253;Arnold v. Hawley, 67 Iowa, 313, 25 N. W. Rep. 259; Jeffery v. Fitch, 46...