Pettis v. Johnston
| Decision Date | 01 June 1920 |
| Docket Number | 9546. |
| Parties | PETTIS v. JOHNSTON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The allegations of a pleading challenged by general demurrer must be construed in connection with the exhibits attached thereto. (See paragraph 11, opinion.)
The recital of service of process in a judgment is not conclusive where it is positively contradicted by, and in irreconcilable conflict with, the judgment roll, but resort to the record to impeach such recital of service in the judgment means an inspection of the entire record--the judgment roll. (See paragraph 11, opinion.)
In support of a judgment collaterally attacked, every intendment will be indulged to uphold and support it; if the judgment thus assailed contains no recital of service of process, and the record is barren of evidence of the issuance and service of process, then the service of process will be presumed; and this presumption of service stands until overcome by evidence to the contrary. (See paragraph 11, opinion.)
If it appear positively from the judgment roll that process was served in a particular mode, no other and different service will be presumed; that is to say, where the record itself explicitly and positively shows a particular kind of service and is in irreconcilable conflict with any reasonable presumption of other service, then the character of service disclosed by the record is the one upon which the jurisdiction of the court must depend. (See paragraph 11 opinion.)
Relief based on extrinsic evidence may be had against a judgment rendered without service of process, under the third subdivision of section 5267, Rev. Laws 1910, empowering the court to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made, on account of "irregularity in obtaining a judgment or order." (See paragraph 2, opinion.)
If it be necessary to resort to extrinsic evidence to show the invalidity of a judgment for want of service of process, the motion to vacate must be presented within three years following the rendition of the judgment or order, as provided for in section 5274, Rev. Laws 1910. (See paragraph 2 opinion.)
The remedy provided by the third subdivision of section 5267, Rev. Laws 1910, for vacating a judgment rendered without personal or constructive service of process, is exclusive of relief in equity during the three years following the rendition of the judgment, unless there be special reasons in the particular case why the statutory remedy is inadequate. (See paragraph 2, opinion.)
Extrinsic evidence--evidence dehors the judgment roll--is admissible to contradict the officer's return of service and the recital of service in the judgment. (See paragraph 2 opinion.)
It is unnecessary for the motion to vacate, based on extrinsic evidence of no service of process, to show a meritorious defense to plaintiff's suit. (See paragraph 2, opinion.)
A judgment which is void upon its face, and requires only an inspection of the judgment roll to demonstrate its want of validity, is a "dead limb upon the judicial tree, which may be lopped off at any time"; it can bear no fruit to the plaintiff, but is a constant menace to the defendant, and may be vacated by the court rendering it "at any time on motion of a party or any person affected thereby," either before or after the expiration of three years from the rendition of such void judgment. Such motion is unhampered by a limitation of time. (See paragraph 3, opinion.)
A judgment is void on its face when its invalidity is affirmatively disclosed by an inspection of the judgment roll, but it is not void, in the legal sense, for the want of jurisdiction, unless its invalidity appears on the face of the record. Edwards v. Smith, 42 Okl. 544, 142 P 302, followed. (See paragraph 3, opinion.)
It is not necessary to show a meritorious defense in support of a motion to vacate a judgment void on its face; nor can the court impose any conditions for vacating it. (See paragraph 3, opinion.)
When it clearly appears that a party not served with process, against whom a default judgment, valid on its face, has been taken, had no notice or knowledge of such judgment until after three years from its rendition, or in too short a time before the three years expired to file a motion to vacate, such party may file a bill in equity against the plaintiff to evade, nullify, or restrain the enforcement of such judgment. (See paragraph 4, opinion.)
An attack in equity, based upon evidence dehors the record, to show the invalidity of a judgment for want of jurisdiction over the party complaining, must be accompanied by a showing that such plaintiff in equity has a meritorious defense to the action upon which the judgment complained of was rendered; and this is true whether the suit is commenced in equity before or after the expiration of three years from the rendition of such judgment. (See paragraph 5, opinion.)
A court of equity may impose such conditions to the granting of relief against a judgment not void on its face as appear equitable under the circumstances of each particular case, and also as provided for by section 5272, Rev. Laws 1910. (See paragraph 5, opinion.)
Sound public policy, the stability of solemn judgments of courts, and the security of litigants, demand that neither the officer's sworn return, nor the recital of service in the judgment based thereon, shall be set aside or contradicted except upon the most clear, cogent, and convincing evidence. (See paragraph 7, opinion.)
The rights of bona fide purchasers of property sold under the authority of a judgment not void on its face will not be affected or prejudiced by either the vacation of such judgment by the court rendering it, or a decree in equity, annulling, evading, or restraining its further enforcement, although extrinsic evidence would show that the court had no jurisdiction for want of service of process on defendant therein. (See paragraph 6, opinion.)
A plaintiff, though without knowledge of the falsity of the officer's return of service of process, is not a bona fide purchaser of property sold under the authority of a judgment for him based upon a false return. (See paragraph 6, opinion.)
This court declines to follow or adhere to those decisions holding that a judgment valid on its face, rendered without service of process or appearance of defendant, may be vacated at any time on motion. (See paragraph 2, opinion.)
The homestead interest is jointly vested in the husband and wife for the benefit of themselves and family, without regard to which spouse owns the title to the land; the homestead interest is a creature of the Constitution and statutes, nothing like it being known at common law; it is a special and peculiar interest in real estate; it is not a mere inchoate interest in either spouse, to become vested upon the death of the other; this joint right is paramount to the individual rights of either, and, being incapable of division and partition between husband and wife, it cleaves and adheres so closely to the title to the land itself that it cannot be dissociated therefrom by a mortgage foreclosure sale under a court decree to which either husband or wife is not a party. (See paragraph 9, opinion.)
The wife, the owner of the homestead in fee, may assail the validity of a decree and judgment foreclosing a homestead mortgage on the ground that the husband, though not the owner of the title to the land, was not made a party to the foreclosure proceedings. (See paragraph 9, opinion.)
If it be found upon an inspection of the judgment roll in a proceeding to foreclose a mortgage executed by husband and wife on the family homestead that the husband was not a party to such foreclosure proceeding, the foreclosure judgment is void, although the wife is the owner of the fee title in the homestead and a party to the foreclosure suit. A sale under such foreclosure judgment is void, and will not operate to divest the wife of the title to the land, nor in any way affect the homestead interest of either the husband or wife therein. (See paragraph 9, opinion.)
An action to foreclose a real estate mortgage is a proceeding in rem. (See paragraphs 11 and 13, opinion.)
The petition filed against a nonresident mortgagor to foreclose a real estate mortgage is the initial link in the chain of proceedings necessary to obtain service of process by publication under section 4722, Rev. Laws 1910, and as such initial link may be resorted to for the purpose of supplying defects and omissions in the affidavit for publication and the publication notice. (See paragraphs 11 and 13, opinion.)
In an action in rem (in this case a real estate mortgage foreclosure) under sections 4671 and 4722, R. L. 1910, against a nonresident, the omission to describe the land in the affidavit for publication is not fatal on collateral attack. Ballew v. Young, 24 Okl. 182, 103 P. 623, 23 L. R. A. (N. S.) 1084, City National Bank v. Sparks, 50 Okl. 648, 151 P. 225, and other attachment cases distinguished in the opinion. (See paragraphs 11 and 13, opinion.)
An affidavit for service by publication, alleging that the defendant is a nonresident of the state, and that plaintiff is unable to secure service of summons in Oklahoma, is sufficient without the additional allegation that plaintiff exercised diligence to obtain personal service. (See paragraph 12, opinion.)
The failure of the publication notice to describe the land involved in an action in rem, or to state that the mortgage to be foreclosed is a real estate mortgage, or to state the amount of the note or debt secured by the mortgage, is not fatal to the judgment on collateral attack. (See paragraph 13, opinion.)
In a...
To continue reading
Request your trial