McMahon v. Brown
| Decision Date | 06 May 1938 |
| Docket Number | 8064. |
| Parties | McMAHON et al. v. BROWN et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Fall River County; A. R. Denu, Judge.
Action by Lena M. McMahon and others against George Brown and others to declare null and void an order or judgment granting leave to issue execution, the execution issued pursuant thereto and the proceedings thereunder. From a judgment in favor of plaintiffs, defendants appeal.
Affirmed.
W. P Rooney, of Hot Springs, for appellants.
C. A Wilson, of Hot Springs, for respondents.
On the 6th day of August, 1915, in an action (No. 5160) then pending in the circuit court of Fall River county wherein one John H Brown was plaintiff and James B. and Bonnie D. Coleman were defendants, a judgment for something more than $1,000 was entered against the defendants.
No execution was issued on the said judgment within five years after the entry thereof, nor was any application made for leave to issue execution upon said judgment within ten years after the entry thereof; but on the 8th day of February, 1935, application was made by the successors in interest to said John H. Brown for leave to issue execution on the said judgment. This application was resisted by the defendants in said action. The ground urged by said defendants as a reason why execution should not issue was that the summons had not been served on the defendants and the court that entered the said judgment was without jurisdiction to enter the same. In response to this objection the court held that the objection constituted a collateral attack on the judgment and could not be entertained. On the 9th day of May, 1935, the court made and signed an order, or judgment, designated as "Judgment Granting Leave To Issue Execution"; but the court also allowed the defendants 20 days in which to commence a suit in equity to test the validity of such judgment.
On the 23d day of May, 1935, and within the said twenty-day period allowed by the court for that purpose, said defendants commenced an action known as case No. 8721 for the purpose of having said judgment declared void. This action came on for trial on the 19th day of March, 1936, and resulted in a judgment to the effect that the summons had been properly served on the defendants, and that the said judgment in case No. 5160 was in all respects a good and valid judgment. On the 16th day of June, 1936, execution issued on said judgment and a purported levy was made on certain real property claimed to be owned by one of the defendants, in Fall River county. Thereupon, James B. and Bonnie D. Coleman, defendants in case No. 5160, commenced this present action. In their complaint they allege substantially all the foregoing facts, and in their prayer for relief asked judgment that the order, or judgment, of May 9, 1936, granting leave to issue execution on the said judgment, the execution issued pursuant to said order, the levy made thereunder, the notice of levy, and all other proceedings had in connection therewith, be declared to be null and void and of no force or effect whatever, and that the judgment against James B. and Bonnie D. Coleman be declared to be wholly invalid and void.
This action was tried to the court. The court found and decided that the judgment against James B. and Bonnie D. Coleman entered in Fall River county on the 6th day of August, 1915, ceased to exist as a judgment on the 6th day of August, 1935 (20 years after the entry thereof), and became and was entirely extinct and of no force or effect from and after the said 6th day of August, 1935, and...
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