Mosley v. S. Mfg. Co.

• Decision Date: 04 September 1896
• Citation: 4 Okla. 492,46 P. 508,1896 OK 80
• Court: Oklahoma Supreme Court
• Parties: F. P. MOSLEY, Administrator, v. SOUTHERN MANUFACTURING COMPANY.

1896 OK 80

46 P. 508

4 Okla. 492

F. P. MOSLEY, Administrator, v. SOUTHERN MANUFACTURING COMPANY.

Supreme Court of Oklahoma

Decided: September 4, 1896

Error from the District Court of Cleveland County.

Syllabus

¶0 1. ATTACHMENT--Death of Defendant in--Effect of. Where a court of general jurisdiction or a court which has acquired full jurisdiction in attachment proceedings over the cause and over the parties, renders a judgment for or against a party, after the death of such party, the judgment is not, for that reason, void. If the personal representatives of the deceased party be not made parties to the action before judgment, the judgment will be irregular and erroneous, but until reversed or vacated by appropriate proceedings, it will be valid. Such judgment is not void but only voidable.

2. ATTACHMENT--Judgment in, after death of Defendant--How Vacated. Sections 238, 586 and 588 of the Code of Civil Procedure, Statutes of 1893, provides the procedure for vacating a judgment irregularly rendered in an attachment suit by reason of the death of the defendant after service and before judgment and where the personal representatives of the deceased had not been made parties to the action; and a petition for injunction by an administrator to restrain proceedings on such judgment, which does not set forth the judgment, the grounds to vacate or modify it, and the defense to the action, does not state facts sufficient to constitute a cause of action and is demurrable.

Hocker & Woods and Fisher & Hennessey, for plaintiff in error.

Bostford & Brewer, for defendant in error.

TARSNEY, J.:

¶1 This action was commenced in the district court of Cleveland county to restrain the enforcement of a judgment previously rendered in said court, in proceedings in attachment. Plaintiff in error is the administrator of S.E. Blake, deceased. The facts stated in the petition are: That previous to the commencement of this action the defendant in error had, in the lifetime of the said S.E. Blake, who was a non-resident of the Territory, commenced an action in said district court, by attachment; that prior to the commencement of said attachment proceedings, other attachment suits had been commenced against said Blake by other parties, and that a stock of merchandise, belonging to said Blake, had been seized, under such attachments, and under an order of the judge, in vacation, the goods were sold and the proceeds, $ 950, brought into court. Pending these proceedings in the other attachment cases, defendant in error brought its suit in attachment against Blake, and a judgment was rendered therein, in favor of the defendant in error, and that the money, so in the hands of the court, should be applied to the payment of the judgments of the respective attaching creditors. Constructive service in the attachment proceedings, instituted by the defendant in error, against said Blake, was regular and complete. That after such service, but before the rendition of judgment in favor of the defendant in error, in such attachment proceedings, the defendant therein, Blake, died. And this cause was commenced to enjoin the enforcement of the judgment in attachment, on the grounds that the defendant in said attachment, having died before the rendition of the judgment therein, the court had no jurisdiction to render said judgment, and that the said judgment and the proceeding thereunder, were void.

¶2 To the petition in this cause, defendant herein demurred on the ground that said petition did not state facts sufficient to constitute a cause of action. Said demurrer was by the court below sustained, and plaintiff in error, excepting, moved for a new trial, which motion for a new trial being overruled by the court, plaintiff in error having excepted, by petition in error brings the cause to this court for review.

¶3 Whether the judgment in the attachment proceedings against Blake was void, or only voidable for irregularity, on account of its being rendered after his death, a proceeding in equity, by injunction, to restrain the enforcement of such a judgment, is not the proper proceeding for relief.

¶4 This proceeding seems to be founded upon two theories, (1) that the death of Blake dissolved the attachment, and (2) that the judgment is void in the attachment proceeding, because it is alleged that Blake died before the judgment was entered up. The decided weight of authority, as well as the better reason, is to the effect that an attachment is not dissolved by death unless some statute expressly so declares. (Mitchell v. Schoonover, 17 P. 867; Moore v. Thayer, 10 Barb. 258; Perkins v. Norvell, 6 Hum. 151; Kennedy v. Raguet, 1 Bay 484; Holman v. Fisher, 49 Miss. 472; White v. Heavner, 7 W. Va. 324.)

¶5 The decided weight of authority seems to be to the effect that if a court of general jurisdiction or a court which has acquired full jurisdiction over the cause and over the parties, renders a judgment for or against a party after the death of said party, the judgment is not for that reason void. It may be erroneous, but until reversed by some appropriate proceeding, it is valid. (Reid v. Holmes, 127 Mass. 326; Mitchell v. Schoonever, supra; Tapley v. Martin, 116 Mass. 275; Kelley v. Riley, 106 Mass. 339; Tapley v. Goodsell, 122 Mass. 176.)

¶6 In Case...