Pettis v. Johnston

• Citation: 1920 OK 224,78 Okla. 277,190 P. 681
• Decision Date: 01 June 1920
• Docket Number: Case Number: 9546
• Parties: PETTIS v. JOHNSTON.
• Court: Oklahoma Supreme Court

1920 OK 224

190 P. 681

78 Okla. 277

PETTIS v. JOHNSTON.

Case Number: 9546

Supreme Court of Oklahoma

Decided: June 1, 1920

Syllabus

¶0 1. Pleading--Construction--Exhibits.

The allegations of a pleading challenged by general demurrer must be construed in connection with the exhibits attached thereto (See par. 11, Op.)

2. Judgment--Recital as to Process--Conclusiveness--Record.

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 en tire record--the judgment roll. (See par. 11, Op.)

3. Same--Collateral Attack--Presumption of Process.

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 par. 11, Op.)

4. Same--Kind of Process Shown by Record.

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 par. 11, Op.)

5. Same--Lack of Process--Extrinsic Evidence--Vacating and Modifying Judgment.

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 par. 2, Op.)

6. Same--Time for Motion to Vacate.

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 par. 2, Op.)

7. Same--Exclusiveness of Remedy--Equity.

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 par. 2, Op.)

8. Same--Service of Process--Extrinsic Evidence.

Extrinsic evidence--evidence dehors the judgment roll--is admissible to contradict the officer's return of service aria the recital or service in the Judgment. (See par. 2, Op.)

9. Same--Motion to Vacate--Requisites--Meritorious Defense.

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 par. 2, Op.)

10. Same--Void Judgment--Attack--Limitations.

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 par. 3, Op.)

11. Same--"Void Judgment"--Judgment Roll--Record.

A judgment is void on its race 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 Okla. 544, followed. (See par. 3, Op.)

12. Same--Motion to Vacate--Requisites and Conditions.

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 par 3, Op.)

13. Same--Method of Attack--Bill in Equity.

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 par. 4, Op.)

14. Same--Attack in Equity--Showing of Meritorious Defense.

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 par. 5, Op.)

15. Same--Conditions of Relief--Power of Court.

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 par. 5, Op.)

16. Same--Sufficiency of Evidence--Process.

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 par. 7, Op.)

17. Same--Rights of Bona Fide Purchasers.

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 par. 6, Op.)

18. Same--"Bona Fide Purchaser"--Judgment Plaintiff.

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 par. 6, Op.)

19. Same--Vacation of Judgment for Lack of Process--Extent of Right.

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 par. 2, Op.)

20. Homestead--Nature of Interest--Mortgage Foreclosure--Necessary Parties.

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 par. 9, Op.)

21. Same--Failure to Make Husband Party--Right of Wife to Attack Foreclosure Judgment.

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 par. 9, Op.)

22. Same--Invalidity of Judgment and Sale.

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 par. 9, Op.)

23. Mortgages--Nature of Action to Foreclose.

An action to foreclose a real estate mortgage is a proceeding in rem. (See pars. 11 and 13, Op.)

24. Process--Service by Publication--Defects in Affidavit and Notice--Cure by Petition in Mortgage Foreclosure.

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 pars. 11 and 13, Op.)

25. Same--Failure to Describe Land in Affidavit--Collateral Attack.

In an action in rein (in this case a real estate mortgage foreclosure), under sections 4671 and 4722, Rev. Laws 1910, against a nonresident, the omission to describe the land in the...