Rogers v. Presnall

• Decision Date: 14 May 1912
• Citation: 124 P. 37,32 Okla. 834,1912 OK 406
• Parties: ROGERS v. PRESNALL et al.
• Court: Oklahoma Supreme Court

124 P. 37

32 Okla. 834, 1912 OK 406

ROGERS v. PRESNALL et al.

Supreme Court of Oklahoma

May 14, 1912

Syllabus by the Court.

Where the defendant in a suit on a judgment answered that he had not been served with summons, and attached a copy of the judgment showing that he had not been summoned and had not appeared in the action, it was error to sustain a demurrer to the answer.

Commissioners' Opinion, Division No. 2. Error from District Court, Murray County; R. McMillan, Judge.

Action by P. A. Presnall and others against Hugh Rogers. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

C. B Kendrick, of Davis, and A. C. Cruce, of Oklahoma City (Richard E. Smith, of Davis, of counsel), for plaintiff in error.

Emanuel & Broadbent, of Sulphur, for defendants in error.

ROSSER C.

This case is brought here for review from the district court of Murray county. The defendants in error brought this suit against Hugh Rogers, plaintiff in error, on a judgment rendered in the district court of Nueces county, Tex. The defendant answered pleading the statute of limitations and that he had not been served with summons in the action in which judgment was rendered against him in Nueces county Tex., and that the judgment there rendered was not valid. He attached a copy of the judgment. The judgment attached shows that defendant was a nonresident of the state of Texas, and does not show that he appeared or that he was personally served with process. It does show that an attorney was appointed by the court to defend him as nonresident, and that this attorney answered for him, but this only adds force to the other presumptions from the record that he had not been served and that no one was authorized by him to appear. It does not appear that any property was attached, and the judgment appears to have been merely a personal judgment.

A demurrer was sustained to the portion of the answer alleging the want of service and invalidity of the judgment. This was error. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222; Cooper v. Newell, 173 U.S. 555, 19 S.Ct 506, 43 L.Ed. 808; 23 Cyc. 1597; Miller v. Mills, 122 P. 671, not yet officially reported. On the general subject of constructive service, see Pinney v. Providence Loan & Investment Co., 106 Wis. 396, 82 N.W. 308, 50 L R. A. 577, and note, 80 Am. St. Rep. 41.

This portion of the answer could have been better pleaded, but it set out the judgment and alleged its invalidity for want of requisite service. This was sufficient as against a general demurrer. It was equivalent to a general denial. The record attached to the answer supported the allegation of invalidity. A general denial would have been good against a demurrer, and under it plaintiffs would have been required to prove a judgment which on its face showed jurisdictional facts. Planing Mill Lbr. Co. v. Chicago, 56 Ill. 304; 23 Cyc. 1521.

Plaintiffs contend that the judgment of a court of general jurisdiction is presumed to be regular, and that such judgment cannot be collaterally attacked. They further contend that the defendant in this case is attempting to attack the judgment collaterally. They are only partially correct in their contentions. The presumption is in favor of the regularity of a judgment of a court of general jurisdiction when it does not bear on its face the evidence of invalidity. But the judgment of a court of general jurisdiction will not be presumed to be valid as against illegality appearing on the face of the record. When the record proper--that is, what is sometimes called the judgment roll--shows on its face that the court did not have jurisdiction, the judgment is subject to...