Ollis v. Orr

• Court: United States State Supreme Court of Idaho
• Writing for the Court: QUARLES, J.
• Citation: 6 Idaho 474,56 P. 162
• Decision Date: 10 February 1899
• Parties: OLLIS v. ORR, ADMINISTRATOR

56 P. 162

6 Idaho 474

OLLIS
v.
ORR, ADMINISTRATOR

Supreme Court of Idaho

February 10, 1899

PLEADINGS-JUDGMENT.-A complaint which attacks a judgment is void solely upon the ground that the affidavit on which order for publication of summons was made "was insufficient" does not state facts sufficient to constitute a cause of action to have such judgment adjudged void, and such complaint, when unaided by affirmative allegation in the answer will not support a judgment for the plaintiff.

[6 Idaho 475]

SAME.-On appeal, a judgment in favor of the defendant will not be disturbed where the complaint fails to state a cause of action.

PUBLICATION OF SUMMONS.-Allegations that a "judgment is void," and that an affidavit for publication of summons is "insufficient," are statements not of fact, but of legal conclusions.

PRESUMPTIONS AS TO REGULARITY.-Every presumption and intendment of law is in favor of the regularity of a judgment of a court of general jurisdiction, and to overcome such presumption, in a suit brought to have such judgment declared void, facts must be alleged and proven showing wherein the court failed to obtain jurisdiction to render the judgment which is so attacked.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Judgment and order affirmed, with costs of appeal to respondents.

W. T. Reeves and Chalmers & Ryan, for Appellants.

The record is defective in the following particulars, many of which are substantial and fatal, viz.: The summons does not specify with any degree of certainty what action would be taken if the defendant defaulted. (Rev. Stats., sec. 4140, sub. 4; Dyas v. Keaton, 3 Mont. 498; Ward v. Ward, 59 Cal. 139; Atchison etc. R. Co. v. Nicholls, 8 Colo. 189, 6 P. 512.) The affidavit for publication of summons fails to state that any complaint had been filed or any summons thereon issued, or the purpose of the suit, if any, or what effort had been made or diligence used to obtain personal service, or where defendant then resided, or what return, if any, was made on the summons, or that any cause of action existed, or what it was, or that the defendant was a necessary or proper party, or the facts showing that personal service could not be made. (Rev. Stats., sec. 4145; 3 Estee's Pleadings, 4th ed., secs. 3935, 3936, and cases cited; Forbes v. Hyde, 31 Cal. 342.) The record does not show the entry of default, by the clerk or otherwise than by way of recital in the judgment, and if entered at all it may have been premature. (Rev. Stats., sec. 4456; Palmer v. McMaster, 8 Mont. 186, 19 P. 585.) The default when taken is an essential part of the judgment-roll. (Rev. Stats., sec. 4456; Palmer v. McMaster, 8 Mont. 186, 19 P. 585; Strode v. Strode, ante, p. 67, 52 P. 161.) This is not a collateral, but a direct, attack upon the judgment in Orr & Orr v. Ollis (12 Am. & Eng. Ency. of Law, 147, note j), and therefore authorities upon collateral attacks are not in point. (McKinley v. Tuttle, 42 Cal. 571; Vaule v. Miller, 69 Minn. 440, 72 N.W. 452.) Courts of equity have always entertained actions for this purpose where the judgment was obtained by fraud, accident, mistake, or without service of process upon the defendant: (3 Estee's Pleadings, 4th ed., sec. 4828b, and cases cited; People v. Thomas, 101 Cal. 571, 36 P. 10; Hurlburt v. Thomas, 55 Conn. 181, 3 Am. St. Rep. 43.) Records import absolute verity only when it appears that the defendant was within the territorial jurisdiction of the court. (Galpin v. Page, 18 Wall. 350; S. C., 3 3 Saw. 93, Fed. Cas. No. 5206; Palmer v. McMaster, 8 Mont. 186, 19 P. 585; Freeman on Judgments, 3d ed., sec. 125; Clark v. Thompson, 47 Ill. 25, 95 Am. Dec. 457; Belcher v. Chamber, 53 Cal. 635.) The rule upon the question of presumption and impeachment in these matters, which is supported by the great weight of authority upon which the appellants rely, and to which we respectfully invite the attention of this court, is laid down in Pennoyer v. Neff, 95 U.S. 714; 3 Estee's Pleadings, 4th ed., secs. 4754, 4828, notes a, b, d, e, and citations; Goodale v. Coffee, 24 Or. 346, 33 P. 990; Willamette R. E. Co. v. Hendrix, 28 Or. 485, 52 Am. St. Rep. 800, 42 P. 514; Alderson v. Marshall, 7 Mont. 288, 16 P. 576; Palmer v....