Mott v. Holbrook

• Citation: 148 N.W. 1061,28 N.D. 251
• Decision Date: 08 September 1914
• Docket Number: 81912
• Court: North Dakota Supreme Court

148 N.W. 1061

28 N.D. 251

EDWARD S. MOTT v. WALLACE M. HOLBROOK

No. 81912

Supreme Court of North Dakota

September 8, 1914

Appeal from the District Court of Pierce county, Burr, J.

Reversed.

Judgment reversed. Defendant recovered costs and disbursements allowable on trial and on this appeal.

Frederic T. Cuthbert, Henry G. Middaugh, Rollo F. Hunt, Arthur R Smythe, for appellant.

The auditor's tax deed was void upon its face. Tax sale deed must show upon its face that sale was made to person offering to accept lowest rate of interest. Youker v. Hobart, 17 N.D. 296, 115 N.W. 839.

The attachment lien of Holbrook, filed and recorded against the land, took precedence of the deed filed and recorded subsequently. Civil Code 1905, chap. 39; Rev. Codes 1905 § 5038.

Holbrook's attachment was valid, and nothing was done by him to injure or prejudice the rights of other or subsequent creditors. Wade, Attachm. & Garnishment, § 220; Drake, Attachm. 250.

An attachment is valid though there was no service on defendant provided he appears voluntarily. Pomeroy v. Ricketts, 27 Hun, 242; Catlin v. Ricketts, 91 N.Y. 668; Shinn, Attachm. §§ 216, 217; Rev. Codes 1905, § 6850.

"The law does not require idle acts." Rev. Codes, 1905, § 6679.

"An interpretation which gives effect is preferred to one which makes void." Rev. Codes 1905, § 6688.

"The law respects form less than substance." Rev. Codes 1905, § 6675.

A confession of judgment is a voluntary submission to the jurisdiction of the court. 8 Cyc. 563; 4 Enc. Pl. & Pr. 560; Hall v. Jones, 32 Ill. 38.

The Holbrook judgment being valid in all respects, it cannot be attacked collaterally. Cordier v. Schloss, 12 Cal. 143; Richards v. McMillan, 6 Cal. 419, 65 Am. Dec. 521; Atwater v. Manchester Sav. Bank, 45 Minn. 341, 12 L.R.A. 741, 48 N.W. 187; McDowell v. Daniels, 38 Barb. 143; Harrison v. Gibbons, 71 N.Y. 59; Kern v. Chalfant, 7 Minn. 487, Gil. 393; Cleveland Co-Op. Stove Co. v. Douglas, 27 Minn. 177, 6 N.W. 628; Lee v. Figg, 37 Cal. 328, 99 Am. Dec. 271.

Kehoe & Moseley, for respondent.

The element of champerty does not exist in this case. Rev. Codes 1905, § 8733; State Finance Co. v. Bowdle, 16 N.D. 193, 112 N.W. 76; State Finance Co. v. Trimble, 16 N.D. 199, 112 N.W. 984; State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357.

A junior attaching creditor may show that the first attaching creditor has lost his lien by attachment for failure to follow it up as by law provided. Gilbert v. Gilbert, 33 Mo.App. 259; 4 Cyc. 647; 11 Enc. Pl. & Pr. 1052; Kendall v. Hodgins, 1 Bosw. 659; Daly v. Matthews, 12 Abb. Pr. 403, note; Rev. Codes 1905, § 5325; Hackney v. Wollaston, 73 Minn. 114, 75 N.W. 1037.

There must first be an action properly pending, and summons must have been personally served, or issued before attachment is allowed. Gans v. Beasley, 4 N.D. 140, 59 N.W. 717.

The court's jurisdiction at such point is conditional. Personal service of the summons, or publication thereof, must be commenced within sixty days after the writ issues, or jurisdiction is lost. Rhode Island Hospital Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341; Rev. Codes 1905, § 6940.

The attachment lien by appellant was a temporary lien which expired by reason of his failure to prosecute the attachment action to judgment. Rev. Codes 1905, § 6999; Van Loan v. Kline, 10 Johns. 129; Gilbert v. Gilbert, 33 Mo.App. 259; Murray v. Eldridge, 2 Vt. 388; Hall v. Walbridge, 2 Aik. (Vt.) 215.

The so-called judgment roll in the former action clearly discloses the fact that appellant did not intend at the time he obtained such judgment, to take judgment in the attachment action. His intent, however, would not control in any event. And parol evidence in the present case is wholly incompetent to establish same, or to contradict the record. Lafferty v. Lafferty, 139 Mich. 176, 102 N.W. 626; Gutterman v. Schroeder, 40 Kan. 507, 20 P. 230; Weigley v. Matson, 125 Ill. 64, 8 Am. St. Rep. 335, 16 N.E. 881; Roche v. Beldam, 119 Ill. 320, 10 N.E. 191; Settlemier v. Sullivan, 97 U.S. 444, 24 L.Ed. 1110; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Carter v. Frahm, 31 S.D. 379, 141 N.W. 370; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959.

The judgment must be deemed a mere judgment by confession in a separate action from the attachment action. Rev. Codes 1905, §§ 7843, 7844; Pond v. Davenport, 44 Cal. 481.

If the judgment is not one in the attachment action, it must be one by confession. If it is such a judgment, then the attachment lien is lost, because it was not entered in Pierce county until after the recording to the Rother deed. Rev. Codes 1905, §§ 7843, 7844; Gilbert v. Gilbert, 33 Mo.App. 259; McHenry v. Shephard, 2 Mo.App. 378; Bryan v. Miller, 28 Mo. 32, 75 Am. Dec. 107.

The respondent, being in the position of a prior purchaser, is at least on a par with a subsequent attaching creditor, and his rights must be respected, and not destroyed or impaired. Davidson v. Alexander, 84 N.C. 621; Bernard v. Douglas, 10 Iowa 370; Woods v. Bryan, 41 S.C. 74, 44 Am. St. Rep. 688, 19 S.E. 218; McHenry v. Shephard, 2 Mo.App. 378; Edgar v. Greer, 7 Iowa 136; Bacon v. Raybould, 4 Utah 357, 10 P. 481, 11 P. 510; Wells v. Gieseke, 27 Minn. 478, 8 N.W. 380; Auerback v. Gieseke, 40 Minn. 258, 41 N.W. 946; Bryan v. Miller, 28 Mo. 32, 75 Am. Dec. 107; Chappel v. Chappel, 12 N.Y. 215, 64 Am. Dec. 496; Dunham v. Waterman, 17 N.Y. 9, 72 Am. Dec. 406; Richardson v. Fuller, 2 Ore. 179; Utah Nat. Bank v. Sears, 13 Utah 172, 44 P. 832; Puget Sound Nat. Bank v. Levy, 10 Wash. 499, 45 Am. St. Rep. 803, 39 P. 142; Wood v. Mitchell, 117 N.Y. 439, 22 N.E. 1125; Gilbert v. Gilbert, 33 Mo.App. 259; Nichols v. Kribs, 10 Wis. 76, 76 Am. Dec. 294; Kennedy v. Howe, 9 Iowa 580.

In confession of judgment, the statement required must be more specific than a complaint. It must specify as in a bill of particulars. Lawless v. Hackett, 16 Johns. 149; Dunham v. Waterman, 17 N.Y. 9, 72 Am. Dec. 406; Bryan v. Miller, 28 Mo. 32, 75 Am. Dec. 107; Bernard v. Douglas, 10 Iowa 370; Nichols v. Kribs, 10 Wis. 76, 76 Am. Dec. 294; Wood v. Mitchell, 117 N.Y. 439, 22 N.E. 1125; Bacon v. Raybould, 4 Utah 357, 10 P. 481, 11 P. 510.

The rule is that a statement in confession of judgment, which does not attempt to state or show any of the facts out of which the debt arose, is void as to third parties. Puget Sound Nat. Bank v. Levy, 10 Wash. 499, 45 Am. St. Rep. 803, 39 P. 142; Chappel v. Chappel, 12 N.Y. 215, 64 Am. Dec. 496; Freligh v. Brink, 22 N.Y. 418; Dunham v. Waterman, 17 N.Y. 9, 72 Am. Dec. 406; Richardson v. Fuller, 2 Ore. 179; Bernard v. Douglas, 10 Iowa 370; Bryan v. Miller, 28 Mo. 32, 75 Am. Dec. 107; Nichols v. Kribs, 10 Wis. 76, 76 Am. Dec. 294; Wells v. Gieseke, 27 Minn. 478, 8 N.W. 380; Davidson v. Alexander, 84 N.C. 621; Richards v. McMillan, 6 Cal. 422, 65 Am. Dec. 521; Cordier v. Schloss, 12 Cal. 147; Auerbach v. Gieseke, 40 Minn. 258, 41 N.W. 946.

Respondent is in position which entitles him to assail the judgment in the former action by the claim that it is not a judgment in the attachment action, but one by confession.

No presumption will be indulged to contradict the recitals in a recorded judgment. The statement of confession of judgment is a part of the judgment roll and record. 23 Cyc. 1089; 17 Am. & Eng. Enc. Law, 1077; 1 Black, Judgm. § 277; Cizek v. Cizek, 69 Neb. 797, 96 N.W. 657, 99 N.W. 28, 5 Ann. Cas. 464; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Barber v. Morris, 37 Minn. 194, 5 Am. St. Rep. 836, 33 N.W. 559; Settlemier v. Sullivan, 97 U.S. 444, 24 L.Ed. 1110; Carter v. Frahm, 31 S.D. 379, 141 N.W. 370; Rev. Codes 1905, § 7844; Rasmussen v. Hagler, 15 N.D. 542, 108 N.W. 541.

OPINION

GOSS, J.

The complaint is in the statutory form of an action to determine adverse claims. The answer sets up a lien by attachment. On the proof it appears that one Alice J. Dahl, in 1903, owned a quarter section in Pierce county. She resided at Devils Lake. Her husband was employed in the store of defendant Holbrook. On December 11, 1903, she executed and delivered to him her promissory note for $ 725.75, bearing interest and due six days after date, or December 17, 1903. The note covered an indebtedness for merchandise previously purchased from defendant. On December 21, 1903, the note being past due, this defendant began an action as plaintiff against Alice J. Dahl as defendant by the issuance of a summons, filing of a verified complaint on promissory note and procured a warrant of attachment out of the district court of Ramsey county, directed to the sheriff of Pierce county as attaching officer, and regularly issued upon an undertaking and affidavit for attachment, which warrant was served the following day, December 22d, by the sheriff of Pierce county, by the recording in the office of the register of deeds of said county a notice of levy upon and describing the land in that county owned by Alice J. Dahl; and in due season, within the twenty-day period allowed, the sheriff of Pierce county made due return thereon to, and filed the same in the office of, the clerk of the district court of Ramsey county. The date of the attachment levy and lien was December 22, 1903. Three days later a deed to the Pierce county land was filed with the register of deeds of that county, conveying the same to F. C. Rother, which deed purports to be dated and acknowledged December 10, 1903, or twelve days before the attachment levy was made. Before the service of summons in the action of Holbrook v. Dahl, in which the attachment had been had and December 23d, the next day after the attachment levy, Alice J. Dahl signed an instrument entitled as was the summons and complaint, and formally confessing judgment in favor of the plaintiff Holbrook for the amount of the note particularly...