Richardson v. Carr
| Decision Date | 04 December 1917 |
| Docket Number | Case Number: 6432 |
| Citation | 171 P. 476,68 Okla. 46,1917 OK 575 |
| Parties | RICHARDSON v. CARR et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Judgment -- "Direct Attack" -- What Constitutes.
A "direct attack" upon a judicial proceeding is any attack within the issues made by the pleadings which has for its purpose the annulment, vacation, correction, modification, declaring void, or avoiding the effect of such proceeding; but the questions raised by and the effect of such attack is determined by the manner of the same, the time of the same, the parties thereto, and the grounds therefor, as well as by point of the attack specified by the attacking party and the relief demanded.
2. Same -- "Collateral Attack" -- What Constitutes.
A "collateral attack" upon a judicial proceeding is an objection incidentally made to the same in the course of a subsequent proceeding, which attack presents an issue collateral to the issue made by the pleadings in the latter proceedings; and its effect is to affirm that such prior proceedings are void upon the face of the mandatory record in the case in which they were had and to require a decision as to whether this is so.
3. Same -- Direct Attack -- Form.
There are different species of direct attack upon judicial proceedings, and each species presents for examination and correction only such errors or defects therein as the law authorizes in the particular attack that is made; that is, such errors and defects as the law authorizes to be examined and corrected, in view of the manner of the attack, the time of the same, the parties thereto, and the grounds alleged therefor.
4. Ejectment -- Nature of Proceeding.
Where a plaintiff who has never voluntarily parted with his title to real estate brings an action to recover the same under section 4492, Stats. 1893 (section 4928. Rev. Laws 1910), and couples therewith an allegation that certain prior judicial proceedings under which the defendants, who are in adverse possession, claim title, are void upon the face of the mandatory record thereof, and prays for their cancellation, his suit, in so far as it is a direct attack upon such proceedings, is in equity, and presents for determination the question of the validity of such prior proceedings upon the face of the mandatory record therein, and also upon any undisputed fact shown without objection.
5. Judgment -- Collateral Attack -- Suit in Equity -- Issues.
A suit in equity attacking prior judicial proceedings upon the grounds of defects apparent upon the face of the mandatory record thereof and praying for the cancellation of such proceedings, although direct, presents no question as to such defects except as to whether they show that such proceedings are void upon the face of such record.
6. Process -- Publication -- Non-residents.
Under section 3950, Stats. 1893 (section 4722, Rev. Laws 1910), an action brought against a nonresident of the territory of Oklahoma having property in such territory to be taken by attachment is one of a distinct and independent class of cases in which service of summons may be made upon the defendant by publication.
7. Same -- Publication of Summons -- Affidavit.
An affidavit for service of summons by publication under sections 3950 and 3951, Stats. 1893. (Sections 4722 and 4723, Rev. Laws 1910), which shows that it is made in one of the class of cases specified in the first-mentioned section, and states that the plaintiff, with due diligence, is unable to make service of summons upon the defendant otherwise than by publication, is sufficient to support a judgment based upon such service by publication, when attacked in a subsequent and distinct proceeding upon the alleged grounds that the omission of such affidavit to expressly state that the affiant did not know and had no reason to believe that such defendant was at the time of his affidavit within said territory rendered such judgment void upon the face of the mandatory record in such case, as this omitted statement is inferable, and will be inferred from the affidavit as made as against such attack.
8. Attachment--Levy--Return -- Description of Property--Care by Judgment.
Where, the return of a sheriff upon a writ of attachment shows that he levied the same upon lots of certain numbers in a certain city in a certain county of Oklahoma as the property of the defendant in such attachment, but omits to show in what block such lots are situated, or to otherwise identify them as against the possibility that such defendant may own other lots of the same numbers in such city, such defect in such description is cured by the Judgment of the trial court foreclosing the attachment lien, and describing said lots as in a certain block in such city, in which the defendant in the attachment proceeding then owned lots of such numbers, when the subsequent proceedings, including the order confirming the sheriff's sale, and the sheriff's deed were regular and fully described said lots, as against an attack upon such proceedings in a subsequent and distinct proceeding upon the alleged grounds that such prior proceedings are void upon the face of the mandatory record.
9. Same--Return--Omissions--Validity.
In an attack upon attachment proceedings as void upon the face of the mandatory record, made in a subsequent and independent proceeding, the mere fact that a sheriff's return upon the order of attachment in the proceeding attacked does not state clearly that, in attaching certain lots in a city, he fully complied with the requirements of section 4076. Stats. 1893 (section 4820, Rev. Laws 1910), by leaving a copy of the order of attachment with the occupant of such lots, or, if there was no occupant in a conspicuous place thereon, does not show want of jurisdiction in the proceedings attacked, and that a sheriffs deed in accord therewith is void.
(a) The testimony of the officer who executed such order of attachment, adduced in such subsequent proceedings by the party defending such prior proceedings more than 15 years thereafter to the effect that there was a little dwelling house, at which there were some children, upon said lots, and that he thought the same were occupied by a certain party who was then contesting the attachment defendant's right to the same under Act Cong. May 14, 1980, c. 207, 86 Stat. 109 (U. S. Comp. St. 1901, p. 1463; U.S. Comp. St. 1916, 5029), etc., providing for town-site entries in Oklahoma, and referring to a portion of his return which shows that he could not find the attachment defendant in his county, and that he left a copy of the order of attachment upon the premises, that he probably posted the same upon the front of such dwelling house, as a conspicuous place upon said premises, does not show that he so far failed to comply with requirements of said section of the statute as to render such attachment proceeding void upon such attack, if his testimony must be taken as sufficient to show that said lots were in fact occupied.
10. Limitation of Actions--"Commencement of Action"--Service of Process.
Where a petition and affidavit for services of summons by publication and affidavit for attachment are filed, and an order of attachment is issued and served upon the same day, but the first publication of summons was not made until the third day thereafter, such action is deemed commenced within the meaning of the provisions of section 4068, Stats. 1893 (section 4812, Rev. Laws 1910), that "the plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant," etc., when tested by the provision of section 3892, Stats. 1893 (section 4659, Rev. Laws 1910), where the service of such summons by publication is duly completed.
11. Attachment--Realty -- Attachable Interest.
Where a claimant of lots in a town site in Oklahoma City under the act of Congress of May 14, 1890, and other acts relating to such town sites has, after all contests have been finally decided in his favor, been adjudged entitled to such lots, and he has paid all fees and charges, although under protest, so that nothing remains to be done on his part to entitle him to a deed from the proper townsite board, conveying said lots to him, which deed has been duly executed by such board, but delivery of such deed to him is withheld pending a decision by the Department of the Interior of the United States upon his protest against the exaction of such fees and charges from him, he has both the legal and equitable title to such lots, and therefore an attachable interest in the same.
Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by W. H. Richardson against Mrs. H. M. Carr, Mrs. Lalla Gray, Mrs. Julia Renaker, H. P. Hickey; Julia K. Goff, H. A. Childs, the Interstate Mortgage & Trust Company, Roy S. Dodd, James D. Kivlehan, Lottie Swatek, Mrs. Willie P. Turney, and Emily Childs for possession of and to remove cloud of certain deeds from the west 50 feet of lots 1. 2, 3, 4, 5, and 6 of Margaret McKinley's subdivision of lots 14, 15, and 16 (originally platted as lots 15 and 16) of block 24 in Oklahoma City as shown by the recorded plat thereof, and for the adjustment of equities between the plaintiff and defendants in respect to the value of the latter's use and occupation of this property and the value of the improvements made by them thereon in the event of plaintiff's recovery of the same. Judgment upon plaintiff's dismissal in favor of H. P. Hickey as to said part of lot 6. Judgment upon the disclaimer of the Interstate Mortgage & Trust Company dismissing its cross-petition. Judgment against the plaintiff and in favor of Mrs. Willie P. Turney as to said part of lots 1 and 2, and in favor of Lottie Swatek as to said part of lot 3, and in favor of Roy S. Dodd and James D. Kivlehan as to said part of lot 4, and in favor of Julia K. Goff as to Said part of lot 5, and also against the plaintiff and in favor of these...
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