O'Neill v. Potvin
| Decision Date | 12 December 1907 |
| Citation | 93 P. 20,13 Idaho 721 |
| Parties | EUGENE O'NEILL, Appellant, v. EDMOND D. POTVIN, Respondent |
| Court | Idaho Supreme Court |
JUDGMENT-COLLATERAL ATTACK-DIRECT ATTACK-WHAT RECORD MAY BE USED ON COLLATERAL ATTACK-JUDGMENT-ROLL-WHAT CONSTITUTES-SERVICE OF SUMMONS BY PUBLICATION-DEFAULT OF DEFENDANT-AFFIDAVIT AND ORDER FOR PUBLICATION OF SUMMONS.
1. The attack upon a judgment is collateral if the action or proceeding has an independent purpose and contemplates some other relief or result than the mere setting aside of the judgment, although the setting aside of the judgment may be necessary to secure such independent purpose.
2. Where the main object or purpose of an appeal, writ of error or motion, if taken or made in the original action, or in an independent action, is for the purpose of setting aside a judgment, such attack is direct.
3. In an action where the service of the summons is made by publication, and the defendant fails to appear and answer under the provisions of subdivision 1, section 4456, Revised Statutes, the following papers constitute the judgment-roll to wit: "Summons with the affidavit or proof of service and the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment."
4. In a collateral attack on the judgment, the want of jurisdiction to render the judgment must appear upon the face of the judgment-roll, otherwise the presumption is in favor of the validity of the judgment.
(Syllabus by the court.)
APPEAL from the District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.
Action to quiet title to certain lands. Judgment for the defendant. Plaintiff appealed. Judgment affirmed.
Judgment affirmed, with costs in favor of the respondent.
Lloyd H. Eriesson, for Appellant, and Eugene O'Neill, pro se.
In the case of Edmond D. Potvin v. William Malanfant, the affidavit for publication of summons is fatally defective in failing to state where defendant's residence was, and in showing no effort whatever to find the defendant at that time or to find where he had been. It shows no diligence, states no facts, and gave the court no jurisdiction to make any order and the order itself was fatally defective; hence the judgment in that case was void, a nullity, and may be attacked directly or collaterally. (Mills v. Smiley, 9 Idaho 331, 76 P. 783; Strode v. Strode, 6 Idaho 67, 96 Am. St. Rep. 249, 52 P. 161; Beckett v. Cuenin, 15 Colo. 281, 22 Am. St. Rep. 399, 25 P. 167; Galpin v. Page, 85 U.S. 350, 21 L.Ed. 959.) Exact and strict compliance with the statute for publication of summons is absolutely acquired and enforced by the courts or jurisdiction held not required. (Harris v. Claflin, 36 Kan. 543, 13 P. 830; Carnes v. Mitchell, 82 Iowa 601, 48 N.W. 941; Clayton v. Clayton, 4 Colo. 410; McCracken v. Flanagan, 127 N.Y. 493, 24 Am. St. Rep. 481, 28 N.E. 385; Ricketson v. Richardson, 26 Cal. 149; Gilmore v. Lampman, 86 Minn. 493, 1 Am. St. Rep. 373, 90 N.W. 1113; Romig v. Gillett, 10 Okla. 186, 62 P. 805; Rue v. Quinn, 137 Cal. 651, 66 P. 216, 70 P. 732.)
Ben F. Tweedy, and Charles L. McDonald, for Respondent.
If the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral. (1 Black on Judgments, sec. 252.)
The primary object in the action at bar was to obtain a decree confirming O'Neill's title to the land in question. Hence, it is a collateral attack on the Potvin judgment.
Regardless of whether or not the steps leading up to the publication of summons and the publication itself was in strict accord with the letter of the statute, the fact remains that a summons was published and that the court held the service to be proper. This finding makes the judgment impregnable against the collateral attack. (Quarl v. Abbott, 102 Ind. 233, 52 Am. Rep. 662, 1 N.E. 480, citing Brown v. Goble, 97 Ind. 86; City of Terre Haute v. Beach, 96 Ind. 143; McCormick v. Webster, 89 Ind. 107; Oppenheim v. Pittsburg, 85 Ind. 471; Stout v. Woods, 79 Ind. 108; McAlpine v. Sweetser, 76 Ind. 78; Hume v. Conduit, 76 Ind. 598; Muncey v. Joest, 74 Ind. 409; Morrow v. Weed, 4 Iowa 77, 66 Am. Dec. 122; Freeman on Judgments, sec. 126.)
"If there be a notice or publication, or whatever of this nature the law requires in reference to persons or other matters, its sufficiency cannot be questioned collaterally." (Morrow v. Weed, 4 Iowa 77, 66 Am. Dec. 122; Bonsall v. Insett, 14 Iowa 309; Ballinger v. Tarbell, 16 Iowa 491, 85 Am. Dec. 527; Hendrick v. Whittemore, 105 Mass. 23; Cook v. Darling, 18 Pick. 393; Finneran v. Leonard, 7 Allen, 54, 83 Am. Dec. 665; Wright v. Marsh, 2 Greene, 94; Paine v. Mooreland, 15 Ohio 436, 45 Am. Dec. 585; Borden v. State, 11 Ark. 519, 44 Am. Dec. 217; Sheldon v. Wright, 5 N.Y. 497; Delancy v. Gault, 30 Pa. 65; Callen v. Ellison, 13 Ohio St. 446, 82 Am. Dec. 448; People v. Hagar, 52 Cal. 171; Figge v. Rowlan, 185 Ill. 234, 57 N.E. 195; Fowler v. Whitman, 2 Ohio St. 270; Boswell v. Sharp, 15 Ohio 447; Sloan v. Thompson, 4 Tex. Civ. App. 419, 23 S.W. 613.)
For the purpose of determining whether a want of jurisdiction is shown by the record, we can look only to the summons, the affidavit of the printer, the complaint, with the default indorsed thereon, and the judgment. (Hahn v. Kelly, 34 Cal. 391-404, 94 Am. Dec. 742.)
"It is a well-settled rule that upon collateral attack evidence aliunde the record is inadmissible." (McCormick v. Friedman, 7 Idaho 690, 65 P. 440; Ollis v. Orr, 6 Idaho 474, 56 P. 162; Haupt v. Sumington, 27 Mont. 480, 94 Am. St. Rep. 839, 71 P. 672; In re Davis' Estate (Cal.), 86 P. 183: Welch v. Koch (Cal.), 88 P. 604; Mesnager v. De Leonis, 140 Cal. 402, 73 P. 1052; Ketchum v. White, 72 Iowa 193, 33 N.W. 627; Axman v. Dueker, 45 Kan. 179, 25 P. 582.)
Where the property of a nonresident is seized upon under the proper process of the court, such seizure is the basis of the court's jurisdiction, and defects or irregularities in the publication of notice will not render the judgment therein absolutely void, although they might be grounds for reversal in a direct attack. (Cooper v. Reynolds, 10 Wall. (U. S.) 308, 19 L.Ed. 931; Johnson v. Gage, 57 Mo. 160; Kane v. McCowen, 55 Mo. 181; Simmons v. Missouri P. R. Co., 19 Mo.App. 542.)
This is an action to quiet title to about 157 acres of land, as per government survey, situated in Nez Perce county. Appellant in his complaint claims title, in fee, to said lands and alleges that respondent makes some claim thereto adverse to him, and that such claim is without any right whatever, and prays to have the title thereto quieted in himself. The respondent answered, denying the ownership of said lands in the plaintiff, and avers that respondent is the owner of such land, and for a further answer avers that he obtained title to said land under sale by execution issued in the case of Edmund D. Potvin v. William Malanfant, to enforce a judgment rendered in the district court in and for Nez Perce county, which judgment was against Malanfant and in favor of the respondent. After a trial of the cause, judgment was entered in favor of the respondent. A motion for a new trial was overruled and this appeal is from the judgment and order denying the motion for a new trial. The appellant bases his title to said land upon a deed to said premises from Malanfant to the appellant.
The real controversy arises over the validity of the judgment in the case of Potvin v. Malanfant, for unless that deed is void the appellant has no title and is not entitled to have the title to said land quieted in himself. Counsel for appellant contend that said judgment was absolutely void by reason of the failure of Potvin in his suit against Malanfant to get service of summons on him by publication as required by law. The first question presented is whether this is a collateral or direct attack on that judgment. This action was instituted to quiet the title to said land in the appellant. That was its ultimate object and purpose, and in order to do that, said judgment in the Malanfant case must be held to be void. This action is clearly a collateral attack on that judgment. In 1 Black on Judgments, section 252, the author defines a collateral attack as follows: "But if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral and falls within the rule." "Collateral" is used as the antithesis of "direct." To constitute a direct attack upon a judgment, it is said that it is necessary that a proceeding be instituted for that purpose. In said section 252, the author states: "If an appeal is taken from a judgment or writ of error, or if a motion be made to affect or set it aside on account of some alleged irregularity, the attack is obviously direct, the sole object of the proceeding being to deny and disprove the apparent validity of the judgment." The appellant seeks in this action to obtain some other relief than that of setting aside said judgment. The main object is to quiet the title of said land in himself, and although the overturning of that judgment is necessary to his success, it does not make this action any the less a collateral attack upon said judgment.
The next question to be considered is: What record may be used in a collateral attack upon a judgment of this kind? By the provisions of section 4456, it is provided that the judgment-roll in cas...
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