Phelps v. McCollam
| Decision Date | 02 December 1901 |
| Citation | 88 N.W. 292,10 N.D. 536 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Kneeshaw, J.
Action by H. W. Phelps against John McCollam on a judgment. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Affirmed.
Phelps & Phelps, for appellant.
Spencer & Sinkler, for respondent.
This is an action brought upon a judgment rendered in a justice's court of Walsh county on May 2, 1891. The complaint is in the usual form of such complaints, and alleges that the judgment was duly assigned to the plaintiff. The answer denies that the justice of the peace before whom it is claimed such judgment was recovered had jurisdiction to enter any judgment, for the reason that no personal or constructive service was ever procured upon the defendant nor did the defendant ever appear in such action. The answer further alleges that the plaintiff is not the owner of the judgment sued upon. The answer asks for affirmative relief in the form of a demand that the judgment sued on be canceled and declared null and void, for the reason that there was no service of the summons in that action. A determination by us that the judgment on which this action is founded was rendered without service of the summons on the defendant will render it unnecessary for us to decide whether the plaintiff is the owner of the judgment. We will assume that he is the owner thereof by virtue of an assignment of the judgment to him. The district court found in favor of the defendant upon both issues, and dismissed the action. The plaintiff appeals, and demands a trial anew here, under the provisions of § 5630, Rev. Codes. Upon the question of the jurisdiction of the justice of the peace, the following facts are material for a decision of the case: The defendant McCollam and his wife were living upon a farm rented to him in Walsh county during part of the year 1890, and up to about April 1, 1891. About April 1st they left this farm, with the intention of removing to the Northwest Territory to live permanently. The husband very soon thereafter went to said Northwest Territory, and filed upon a homestead there but did not ever reside on such homestead. The wife removed to the home of one Woods, at the invitation of the Woods family, and with the consent of her husband, to remain there until he secured a new home and sent for her. Some of the husband's goods were moved to the Woods place, but there is no showing that they were used there. The husband was at the Woods place a night or two, and took a few meals there prior to the time of his leaving for the Northwest Territory. In the latter part of April it is claimed that a summons was served upon the wife at the Woods place. She says a paper was left with her. She does not know by whom, nor what the paper was, nor the precise date. There is no other evidence as to the contents of the paper. The only other evidence as to the service is that the summons was sent by mail to a deputy sheriff at Park River, for service, and that it was returned to the plaintiff's attorney in that suit as having been served on the defendant McCollam on April 25, 1891. This evidence as to mailing the summons to the deputy sheriff for service, and its return as having been served, was given by the plaintiff's attorney. The original files, and the docket of the justice of the peace, were not produced in court, nor was the fact that they could not be produced there shown by evidence of that diligent search which is necessary before secondary evidence of their contents could be properly received. Even had such showing been made, still there was no other evidence, except that given above in reference to the contents of the justice's docket, of the fact, manner, time, or place of service, or on whom, or by whom made. The plaintiff contends that the fact that an abstract of the judgment rendered by the justice of the peace was filed in the office of the clerk of the district court, pursuant to § § 5498, 6717, Rev. Codes, renders proof of the service of the summons unnecessary. Such abstract was offered in evidence, and is a statement of the facts prescribed by, and has attached to it the certificate authorized by, said § 6717, and none others.
The first question to be determined is, what effect is to be given to the filing of such abstract in the office of the clerk of the district court, so far as the jurisdiction of the justice originally to render the judgment is concerned? The plaintiff contends that such filing of such transcript or abstract makes the judgment a judgment of the district court in all respects, and for all purposes, and gives to such judgment thereafter like presumptions of regularity and jurisdiction attaching to judgments of district courts. The language of § 5498 is that, after such docketing of such transcript in said clerk's office, "it becomes a judgment of such district court, and a lien upon real property." Such section enlarges the effect of such judgment after such filing. The effect is enlarged, so that it becomes a lien on real estate, and it is enlarged perhaps in other respects. From the language of such section, and from authoritative decisions on similar statutes, it is not our understanding that such filing renders such judgment thereafter a judgment of the district court, to the extent of clothing it with presumptions of regularity and jurisdiction, following the judgments of courts of general jurisdiction. In our opinion the effect of such filing is the following: The district court is thereafter to have full control of the enforcement and collection of such judgment. It becomes a lien on real estate, and the justice of the peace thereafter has no control over it, nor power to enforce it. The judgment nevertheless continues to be a judgment of a justice of the peace so far as relates to the principles to be applied in determining the jurisdiction of the justice to render it. Agar v. Tibbets, 56 Hun 272, 9 N.Y.S. 591; Kerns v. Graves, 26 Cal. 156.
The answer directly alleged that the judgment of the justice of the peace was void, for the reason that no personal service was ever procured upon the defendant, as provided by § 5252, Rev. Codes. If there was any personal service on him it must have been by virtue of service upon his wife while at the Woods place, as it is undisputed that he was in the Northwest Territory after April 15th, and up to August of the same year. Was there service on the defendant under subdivision 7 of § 5252, Rev. Codes? It reads as follows: "In all other cases to the defendant personally; and if the defendant cannot conveniently be found, by leaving a copy thereof at his dwelling house in the presence of one or more of the members of his family over the age of 14 years, or if the defendant resides in the family of another, with one of the members of the family in which he resides over the age of 14 years." The question resolves itself into a determination of the fact whether the Woods house was the dwelling house of the defendant on April 25, 1891. The evidence is...
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