Salt Lake City v. Salt Lake Inv. Co.

• Decision Date: 08 July 1913
• Docket Number: 2479
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. SALT LAKE INV. CO.

134 P. 603

43 Utah 181

SALT LAKE CITY v. SALT LAKE INV. CO.

No. 2479

Supreme Court of Utah

July 8, 1913

APPEAL from District Court, Third District: Hon. T. D. Lewis, Judge.

Action by Salt Lake City against the Salt Lake Investment Company.

Judgment sustaining a demurrer and dismissing the complaint. Plaintiff appeals.

AFFIRMED.

H. J Dininny, city attorney, P. J. Daly and Aaron Myers, assistant city attorneys, for appellant.

APPELLANT'S POINTS.

Where the steps by which a court is supposed to have acquired jurisdiction are all shown by the record, and it appears from an examination of the same without recourse to extraneous matter, that the court acted without jurisdiction, the judgment may be attacked and set aside. (Black on Judgments Sec. 218; C. B. & Q. R. R. Co. v. Hitchcock, 84 N.W 97; Fogg v. Ellis, 86 N.W. 494; Ritchie v. Snyder, 100 F. 520.)

The authority of a person confessing judgment for another must appear on the record. (Campbell v. Cooper, 6 N. J. L. 142; Cade v. Young, 8 N. J. L. 369.) The court has no power to enter judgment by confession without confession by the defendant or his attorney on cognovit or warrant of attorney. (Bernstein v. Curran, 99 Ill.App. 179.) Judgment by agreement is a judgment by confession; there is no distinction. (Lauderdale v. R. T. A. Emms, etc., 24 S.W. 834.) Where judgment purporting to be entered by agreement was entered without authority, judgment and all proceedings under it will be set aside. (Foley's etc. v. Gutliff, 43 S.W. 190.)

Without authority from governing body, the chairman or attorney for village has no authority to confess judgment; they cannot stipulate away the rights of the village, and court who renders judgment in such case is without jurisdiction. (C. B. & Q. R'y Co. v. Hitchcock, 84 N.W. 97 [Neb.]; R'y Co. v. Baker, 45 P. 494 [Wyo].) No affidavit of merit is necessary in support of application to set aside a judgment void for want of jurisdiction. (Bennett v. Supreme, etc., 82 P. 744.) Judgment is void if confessed without filing warrant of attorney showing authority to file the same. (Desnoyers S. Co. v. Bank, 188 Ill. 312; 58 N.E. 994.)

Persons dealing with a municipal corporation are bound to know the extent of the powers lawfully confided to the officers with whom they are dealing on behalf of such corporation, and must guide their conduct accordingly. (Murphy v. Louisville, 72 Ky. 189; Stone v. Bank, 174 U.S. 424; People v. Mayer, 11 Abbott Pr. 66.)

An attorney, whether for a municipal corporation or for an individual, may enter into no bargains or contracts in reference to his client's rights, as contradistinguished from mere agreements as to the conduct of the suit, which will bind the client, unless he has been specially authorized or his acts have been ratified by his employer, and the want of authority of an attorney to consent to a compromise judgment under such a bargain or agreement may be shown in a collateral attack, and the judgment thus obtained set aside. (Preston v. Hill, 50 Cal. 43; Robinson v. Murphy, 69 Ala. 543; Demort v. Looner, 21 Conn. 245; Davidson v. Rozier, 23 Mo. 387; (Marbourg v. Smith, 11 Kan. 562; Swinfen v. Swinfen, 24 Beaver 549; Hall Safe & Lock Co. v. Harwell, 88 Ala. 441; Vail v. Conant, 15 Vt. 314; Doub v. Barnes, 1 Md. Ch. 127; Smock v. Dade, 5 Randall 639.)

C. S. Patterson and C. S. Varian for respondent.

RESPONDENT'S POINTS.

Almost every statutory requirement in matter of procedure, including jurisdiction of the person, may be waived, and is waived by failure to interpose timely objection calling attention to the defect. Want of verification is one of the requirements that may be so waived. (Morgan v. Bartlette, 2 O. C. D. (Ohio) 244; Hughes v. Feeter, 18 Iowa 142; Moses v. Risdon, 46 Iowa 251; Yaizer v. Burke, 11 Miss. 439; Johnson v. Jones, 2 Neb. 126.)

If in an action a court had jurisdiction to render a judgment, and such judgment has never been reversed or modified it is binding on the parties and their privies, and conclusive of the questions litigated; and, if the court has misapplied the law as to any question, the judgment must nevertheless stand until corrected in some appropriate way. (Hodson v. Union Pac. Ry., 14 Utah 402, 47 P. 859; R. G. W. Ry. v. Telluride, 23 Utah 22, 63 P. 995; Hoagland v. Hoagland, 25 Utah 56, 69 P. 471.)

Attorneys have authority to bind their clients in the progress of law suits, by compromises, stipulations and consent orders. Thus a decree given upon a compromise and by consent of parties through their attorneys, is a bar by estoppel. (Merritt v. Campbell, 47 Cal. 542; Royston v. Horner, 75 Me. 557-567.) So where a defendant was not served with process and an attorney, appeared without authority, it was held that the court had jurisdiction. (Seale v. McLaughlin, 28 Cal. 669.) Neglect of an attorney, whereby judgment is rendered against his client, is no ground for relief in equity, in the absence of fraud. (Wynn v. Wilson, Fed. Case No. 18112; Barhorst v. Armstrong, 42 F. 2; Broda v. Greenwald, 66 Ala. 538; Ames v. Snyder, 55 Ill. 498; Fuller v. Little, 69 Ill. 229; Bardonski v. Bardonski, 144 Ill. 284, 33 N.E. 39; Patterson v. Matthews, 6 Ky. 80; Barrow v. Jones, 24 Ky. 470; Matthis v. Cameron, 62 Mo. 504; Bowman v. Field, 9 Mo.App. 576; 11 Mo.App. 594; Burton v. Wiley, 26 Vt. 430; Ayers v. Morehead, 77 Va. 586; Hiles v. Mosher, 44 Wis. 601.)

The plaintiff city is presumed to have known what the records disclosed, and also those matters which were of public notoriety, and is charged with notice of the facts relating to its own property which would have been disclosed to it if it had exercised ordinary prudence in the conduct of its affairs. (Foster v. R. R. Co., 146 U.S. 88-99-100; Hecht v. Slaney, 72 Cal. 363-367; 14 P. 88; Manning v. San Jacinto Tin Co., 9 F. 726-735-736.)

Where the matters complained of as frauds are evidenced by public records, it is settled that the party who seeks to avoid the effect of such notice must show something more than concealment by mere silence--some affirmative act of deception; there must be some misleading device or contrivance on the part of the party charged with fraud intended to exclude suspicion, prevent inquiry and the institution of adequate measures of redress." (Lant v. Mauley, 71 F. 7-19; New Albany v. Burke, 11 Wallace 107; Wood v. Carpenter, 101 U.S. 135-140; Pearsall v. Smith. 149 U.S. 231-236.) It is not enough for a plaintiff, who relies upon the fact that he did not discover fraud or mistake until within three years prior to the bringing of his suit to avoid the bar of the statute of limitations, to simply allege the conclusion that he was ignorant of the facts at the time of occurrence and had not been informed of them until within three years of bringing his suit. He must show that the acts of fraud complained of were committed under such circumstances that he would not be presumed to have any knowledge of them, as that they were done in secret or kept concealed; and he must show times and circumstances under which facts constituting fraud were brought to his knowledge so that the court may determine whether the discovery was within the time alleged. And, the delay which has occurred must be shown to be consistent with the requisite diligence. (Lady Washington Co. v. Wood, 113 Cal. 482-6-7; 45 P. 809; Latillade v. Orena, 91 Cal. 565; 27 P. 924, 927; Bills v. Silver King Mining Co., 106 Cal. 9-19; 39 P. 43-45; Hetch v. Slaney, 72 Cal. 363-7; 14 P. 88; Ryan v. Wooden, 9 Idaho 525; 75 P. 261-262; Wood v. Carpenter, 101 U.S. 140; Ware v. Galveston, 146 U.S. 102-116; Johnston v. Mining Co., 148 U.S. 360-370; Boone County v. B. M. R. R. Co., 139 U.S. 685.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is a proceeding in equity to set aside and annul a judgment. The facts upon which relief was asked, briefly stated, are as follows:

That the plaintiff is a municipal corporation, and the defendant is a private corporation. That on the 26th day of October 1869, the plaintiff by purchase and proper deeds of conveyance from the then owners acquired the title in fee to certain real estate situate in Salt Lake County, Utah, which is fully described in the complaint, and which deeds, it is alleged, were duly recorded in Salt Lake County in the month of August, 1870. That thereafter Salt Lake County unlawfully sold the real estate aforesaid for taxes, and that pursuant to said tax sales the auditor of said county pretended to convey a portion of said lands to the defendant and that the defendant through certain tax sales and tax sale certificates, unlawfully made and issued by said county, claimed ownership of all the lands in controversy. That at all times since 1869 all of said real estate sold to and claimed by the defendant as aforesaid was exempt from taxation. That thereafter, on the 17th day of October, 1905, the defendant, claiming to be the owner, and basing its claim of ownership upon the tax deeds and tax sale certificates aforesaid, commenced an action in the district court of Salt Lake County, which action was designated as No. 7608, to quiet the title to the lands in question in itself. That the plaintiff was made a party to said action and was duly served with summons, and by its attorneys entered an appearance therein by filing a general demurrer to the complaint. That thereafter, and without having said demurrer disposed of, said attorneys, representing the plaintiff herein as one of the defendants in said action, entered into a pretended agreement with the plaintiff in that action, who is the defendant in this action, whereby the said attorneys agreed to and did in behalf of the plaintiff herein file a disclaimer in said action in which the plaintiff...