Mosby v. Gisborn

Decision Date16 August 1898
Docket Number948
Citation17 Utah 257,54 P. 121
CourtUtah Supreme Court

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Suit by Daniel S. Mosby, by his guardian ad litem, S.W. Mosby against Matthew T. Gisborn and others, to annul a decree. Plaintiff's petition was dismissed, and he appeals.

Reversed, with directions.

Ellis & Ellis, for appellant:

A bill filed to annul and set aside a judgment or decree on the ground that the court rendering such judgment or decree never acquired jurisdiction over the person of the defendant, and upon the ground also that the judgment or decree complained of was procured by fraud, practiced upon the court and the opposing party, presents a case of direct attack upon the judgment thus assailed. See Van Fleet Collateral Attack, sec. 2; 12 Am. and Eng. Encl. 147j; Hurlburt v. Thomas, (55 Conn.) 3 Am. St. Rep. p. 43; Penrose v. McKenzie, 116 Ind. 35; McCampbell v. Durst, (Texas) 11 S.W. 381. See also Morrill v. Morrill, 20 Ore. 96; Michaels v. Post, 21 Wall. 398, read 426. See also Eickhoff v. Eickhoff, 107 Cal. 43.

Where, as against a non-resident, the court attempts to obtain jurisdiction by constructive notice, the statute must be strictly complied with. And where, as here, the statute requires that the court shall by its order direct what notice shall be given and the manner in which it shall be given, the proceedings are void if the order does not comply with the statute in these particulars. Park v. Higby, 6 Utah 414; Otis v. Epperson, 88 Mo. 131; Bradley v. Hines, 33 Iowa 157; Gronfier v. Puymirol, 19 Cal. 630; Townsend v. Tallant, 33 Cal. 45; Seavearns v. Gerke, 3 Sawyer 364. See also Granger v. Superior Court, 44 Mich. 384. Woolkins v. Haid, 49 Mich. 299; Spure v. Vanderberg, 57 Mich. 530; Nugent v. Nugent, 70 Mich. 52; Platt v. Stewart, 10 Mich. 260; Vincent v. Smith, 33 Mich. 155; Hebel v. Ins. Co., 33 Mich. 400; Richardson v. Richardson, 26 Cal. 149, 153, 154; Braly v. Keenan, 30 Cal. 617, 618; McMinn v. Whelan, 27 Cal. 213, 214; Frobes v. Hyde, 31 Cal. 352, 353; Guarantee Trust Co. v. Green Grove Springs R. R. Co., 139 U.S. 137.

A decree setting aside and annulling the decree and deed complained of, as having been fraudulently procured, would not directly affect the real estate in question; it would simply remove the obstruction which this fraudulent decree and fraudulent deed interpose to the plaintiff's pursuit of his legal remedy. With the decree and the deed set aside the plaintiff would still be required to bring his action in ejectment for the recovery of the property, and mesne profits; which action would, of course, have to be commenced in Tooele County. See Morgan v. Bell, (Wash.) 28 P. 925; Saffold v. Scottish Am. Mfg. Co., 27 S.E. 208; Smith v. Bryan, 34 Ga. 53; Bivins v. Bivins, 37 Ga. 346; Mfg. Co. v. West, 61 Ga. 120; McArthur v. Mathewson, 67 Ga. 135.

Brown & Henderson and R. N. Baskin, for respondents:

That the action in this case is for the determination of an interest in real estate we cite the court to the following authorities: Sloss v. DeToro, 77 Cal. 129; Franklin v. Dutton, 79 Cal. 605; Baker v. Firemen's Fund Ins. Co., 73 Cal. 182; Bush v. Treadwell, 11 Abbott's Practice (N. S.) 27; Acker v. Leland, 96 N.Y. 383.

It is a separate and independent action brought in equity to set aside and vacate this judgment, it is not a proceeding in the action sought to be annulled, it is not in a court having supervisory power over the court that rendered it, and such action is a collateral attack. 1 Black on Judg., sec. 253; Hanley v. Hanley, 114 Cal. 690; Van Fleet on Col. Attack, Secs. 2, 3, 5, 9 and 11.

We are to determine the validity of this judgment in this action upon the principles applying to collateral attack. When the judgment of a court of record, of general and competent jurisdiction, is collaterally brought in question, everything is presumed in favor of the regularity of its proceedings and its jurisdiction and if on its face it recites and sets out the facts necessary to this jurisdiction its averments are final and conclusive in all collateral proceedings and cannot be contradicted by any extraneous evidence. 1 Black on Judg., sec. 273; Amy v. Amy, 12 Utah 278; Astor v. Grignons Lessees, 2 How. 319-340; Seargent v. State Bank Ind., 12 How. 385; Coit v. Hamm, 79 Am. Dec. (Conn.); Hartman v. Osborn, 93 Am. Dec. 279 (Pa.); McCaulty v. Fulton, 44 Cal. 355.

The question of notice was purely in the discretion of the court. It had complete control over it and having found that it was given as required by law and as "it had directed," it is conclusively presumed that he had directed it as it was given and that he had ratified and approved it. Van Fleet on Coll. Attack, sec. 835. Kelly v. Morrell, 29 F. 736; Gronfier v. Puymirol, 29 Cal. 629.

Nothing is now better settled, and it is universally held upon a bill filed which is an original bill in equity to set aside a judgment or decree for fraud, that the court can only consider matters outside of the record and cannot retry the question that was at issue in the original action, even though the decree sought to be set aside was obtained upon false and perjured testimony. United States v. Throckmorton, 98 U.S. 61; Green v. Green, 2 Gray (Mass.) 361; Hanley v. Hanley, 114 Cal. 690 and cases cited in opinion; In re Griffith, 98 Cal. 107; Pico v. Cohn, 91 Cal. 129; Flaley v. Flaley, 104 Cal. 354; Morrill v. Morrill, 20 Ore. 96; Harmon v. Moore, 112 Ind. 221.

This action was brought by Daniel S. Mosby, an insane person, by his guardian ad litem, S.W. Mosby, against the defendants, to annul a decree of the Third judicial district court of the late territory of Utah, entered on the 1st day of September, 1893, in an action wherein the defendant Gisborn was plaintiff and the defendant Emerine Dressler, as guardian of Daniel S. Mosby, was defendant, and to cancel a deed executed by her to the defendant Gisborn, which she purported to execute as the guardian of Daniel S. Mosby and his estate. The decree and the deed are assailed on two grounds, viz.: First, that the court in which the decree was rendered did not acquire jurisdiction over the person of Daniel S. Mosby; second, that the decree was procured by fraud on the part of Gisborn.

The testimony on the trial established the following facts, in substance: That on the 8th day of November, 1880, the defendant Gisborn was the owner and in possession of the Geyser mining claim, described in the complaint, and on that day he entered into an agreement in writing with Daniel S Mosby, as follows: "This agreement, made on the 8th day of November, 1880, between Matthew T. Gisborn and Daniel S. Mosby, of the county of Salt Lake, territory of Utah, witnesseth: That said Gisborn having this day deeded and conveyed to said Mosby an undivided one-half of the mining ground in Camp Floyd mining district, Tooele county, known as the "Geyser Quicksilver Ground," to be hereafter owned and worked in joint and equal interests for the mutual benefit of each other, and to this end it is hereby agreed that said Mosby advances the sum of two thousand dollars for work, labor, and expenses in the development of said mining ground, and in mining for and marketing quicksilver ores, or other metals which may be found within said ground, and for obtaining a United States patent for the same; and said Mosby agrees to advance as may be necessary and required for such purposes, and as may from time to time be agreed upon by the parties hereto, a further sum, not to exceed one thousand dollars additional; and the said Gisborn is to attend to the direction, control, and supervision of work upon and developing and mining said ground and producing ores therefrom, to the best of his judgment, skill, and ability, and for the mutual benefit of both parties; and from all the net proceeds arising not of the working and developing of said ground, the money and profits therefrom accruing shall be appropriated as follows, viz.: First, to reimburse and repay to said Mosby all the advances he may make herein under the terms of this agreement; second, to reimburse and repay to said Gisborn all the advances he may make in and about the work done under this agreement; third, after such reimbursements, as provided above, the balance to be divided equally between the parties from time to time, as the parties hereto shall agree. And each party agrees to mutually do and execute their several agreements herein for the best interests of their joint ownership in said ground, and to keep and render, each to the other, whenever requested, a full and correct account of all advances, labor, work, developments, proceeds, expenditures, and profits made on or arising herein." This agreement was duly signed and witnessed. That contemporaneous with the execution and delivery of said agreement Gisborn executed and delivered to Daniel S. Mosby a warranty deed, which was duly acknowledged, so as to entitle it to be recorded, and the same was duly recorded on 22d day of November, 1880, whereby said Gisborn conveyed to said Daniel S. Mosby an undivided one-half on the said Geyser mining claim. That thereafter, on the 16th day of October, 1882, the government of the United States, by letters patent, conveyed the said mining claim to Gisborn and Mosby, their heirs and assigns, forever. That early in the spring of 1881 Mosby departed from the territory of Utah, and has never since returned. That prior to the year 1893 Mosby became insane, and ever since has been wholly incompetent to attend to business. That the defendant Emerine Dressler is the mother of said Mosby, and...

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