San Juan & St. Louis Mining & Smelting Co. v. Finch

• Decision Date: 01 April 1882
• Citation: 6 Colo. 214
• Parties: THE SAN JUAN AND ST. LOUIS MINING AND SMELTING COMPANY v. FINCH ET AL.
• Court: Colorado Supreme Court

6 Colo. 214

THE SAN JUAN AND ST. LOUIS MINING AND SMELTING COMPANY v. FINCH ET AL.

Supreme Court of Colorado

April, 1882

Error to District Court of Ouray County.

THE case is stated in the opinion.

Messrs THATCHER and GAST, for plaintiffs in error.

Mr. J P. BROCKWAY, for defendants in error.

STONE J.

Suit was brought against the plaintiff in error, the San Juan and St. Louis Mining and Smelting Company, in the county court of Ouray county, by Henry Gardner, one of the defendants in error, claiming an amount due for work done under a contract with said company (which was averred to be a corporation duly organized), in the erection of buildings upon certain premises described, and praying for judgment and a lien upon said premises under the statutory lien law, and that the said premises be sold to satisfy the judgment prayed.

That portion of the summons in the case which is important to be considered here is as follows: 'STATE OF COLORADO, Ouray County, ss:

'In the county court within the county and state aforesaid. Henry Gardner, plaintiff, v. The San Juan and St. Louis Mining and Smelting Company, R. F. Long, president, W. H. Strout secretary, and Charles H. Rawles, defendants.

'The people of the state of Colorado send greeting to R. F. Long, W. H. Strout and Charles H. Rawles, defendants above named.

'You are hereby required to appear in an action brought against you by the above named plaintiff in the county court within and for the county of Ouray and state of Colorado, and to answer the complaint filed therein,' etc.

The return of the sheriff certifies that service was made by delivering copies of the writ to each of the said persons, Long, Strout and Rawles. Complaints were afterwards filed in the case by Waldron, Lewis, Hammon and Hotchkiss as interpleading claimants, for labor and materials furnished, as alleged, upon like contracts with the said mining and smelting company. Upon default of appearance by either the company or any of the parties served, judgments were rendered by the county court in favor of the claimants in each case, aggregating near $4,000, which judgments were declared liens upon the premises of said corporation, and separate executions were issued upon each judgment commanding the sheriff to make the same out of 'the lands and tenements, goods and chattels of the San Juan and St. Louis Mining and Smelting Company,' and afterwards the property of the said company was advertised for sale by the sheriff to satisfy the judgments rendered as aforesaid.

Thereupon the plaintiff in error presented to the judge of the district court for said county a petition for injunction, praying to have the judgment and decree of the county court set aside, and that Finch, the sheriff, be restrained and enjoined from selling the said premises by virtue of the execution issued upon the decree or judgment rendered in the case.

A preliminary injunction was awarded and issued, and afterwards, the cause coming on for hearing at the ensuing term, the injunction theretofore issued was dissolved, and judgments were rendered in favor of each of the defendants, Gardner, Hammon, Lewis, Waldron and Hotchkiss, for the several amounts claimed by each, the same as in the county court, and the premises of the plaintiff company, as described, were ordered to be sold to satisfy said judgments, if not paid in ten days.

To reverse the judgment of the court below the following errors were assigned:

1. The proceedings recited as in the county court of Ouray county were utterly void and of no effect, for the reasons stated in the complaint, and therefore the district court erred in dissolving the preliminary injunction.

2. The court erred in not decreeing that a perpetual injunction issue to restrain all proceedings under the said void judgments of said county court of Ouray county.

3. The court erred in overruling the demurrer to the answers and cross-bills of the defendants.

4. The court erred in ordering the appellant to plead to said cross-complaints while demurrers thereto remained undisposed of.

5. The court erred in ordering appellant to plead instanter.

6. The court erred in giving final judgment upon the said cross-complaints without disposing of the issues raised by the original complaint.

7. The court erred in rendering personal judgment against appellant, and the said judgment is in other respects erroneous.

8. The court erred in proceeding to a hearing of said cross-complaint and rendering judgment thereon without notice to the other lien claimants as required by law.

9. If the judgments of the county court of Ouray county were void, the district court should so have decreed. If they were not void, then the district court erred in rendering new judgments upon the causes already adjudicated.

There is no statutory redemption from decrees of sale in mechanics' lien cases, and therefore the time for payment allowed by the district court was unconscionably short.

The first, second and ninth assignments may be considered together, as going to the objection against the judgment upon jurisdictional grounds.

The issue tendered by the plaintiff in error in the district court was not whether there was sufficient proof in support of the several claims to sustain the decrees or judgments rendered thereon in the county court, but whether such judgments were not void for the reasons set out in the complaint or petition for injunction.

This petition as brought up by the record sets forth so much of the proceedings in the county court as serves to show fully the matters complained of. This shows that the corporation sued, and against which the lien foreclosures were prayed, was not served with process, never entered its appearance, that no summons was in fact for any purpose. The summons was issued against Long, for any purpose. The summons was issued against Long, Strout and Rawles, which persons are thereby informed that if they fail to appear and answer, judgment will be taken against them.

Since the county court, by the service of this summons to the three persons named therein, acquired no jurisdiction over the corporation sued, the default taken against it was without warrant of law, and the judgments or decrees rendered thereupon were unauthorized and void.

Hence, respecting the action of the district court, no reason is perceived for dissolving the injunction or for not perpetuating it.

The want of service on the company affirmatively appears by the record, and in such case the jurisdiction of the county court did not attach. Freeman on Judgments, s 125; Clark v. Thompson, 47 Ill. 25; Gilpin v. Page, 18 Wall. 365; Clayton v. Clayton, 4 Col. 415.

That a judgment rendered against a party not before the court is invalid, is a jurisdictional principle of elementary familiarity, and that a court of chancery may interpose to enjoin the execution of a judgment rendered against a party without service of process upon him, by reason whereof he does not appear or make defense to the action, is well settled by weight of authorities. A distinction is taken in some of the books between cases where the record affirmatively shows a want of service, and cases where the record merely omits to show the service, leaving the service to be presumed prima facie; but where, as in the case before us, the failure of service is affirmatively shown, and consequently no appearance made, the judgment is void beyond question. In such cases it is clear that the judgment may be enjoined. Bell v. Williams, 1 Head, 229; Caruthers v. Hartsfield, 3 Yerg. 366; Ridgeway v. Bank of Tenn. 30 Tenn. 523; Robinson v. Reed's Ex'r, 50 Ala. 70; Blackeslee v. Murphy, 44 Conn. 193; Connell v. Stilson, 33 Iowa, 149; Chambers v. Bridge Manufactory, 16 Kan. 270; Probst v. Meadows, 13 Ill. 164; G. T. N. & T. Co. v. Schirmer, 44 Ill. 107; Hickey v. Stone, 60 Ill. 459; Gross v. Hess, 37 Ind. 193; Nicholson v. Stephens, 47 Ind. 185; Earl et al. v. Matheny, 60 Ind. 202; 1 Smith's Lead. Cas. (7th Am. ed.) 1119, 1128, 1144; 2 W. & T. Lead. Cas. in Eq. 1370.

In the Tennessee cases above cited, and in some others, it is held that the issuance of the injunction is not dependent upon whether the complainant has a defense to the action wherein the judgment is sought to be enjoined; and in the Kansas case of Chambers v. Bridge Manufactory, supra, the judgment was perpetually enjoined, although it appeared regular and valid on its face, the return of the sheriff as to service being allowed to be impeached by showing that the person served was not at the time an officer of the corporation sued. To the same effect are the cases of Ridgeway v. Bank and Hickey v. Stone, supra. Without going to the same extent, all these authorities support the general rule in the case of a judgment clearly void.

A few cases are found which hold a contrary view, but for the most part are decided upon the circumstances of the particular case, and not upon authority. Sanches v. Carriaga, 31 Cal. 170; Gregory v. Ford, 14 Cal. 139; Gates v. Lane, 49 Cal. 266; Parsons v. Nutting, 45 Iowa, 404; Crandall v. Bacon, 20 Wis. 639; Hart v. Lazaron, 46 Ga. 396.

In the case of Gates v. Lane, supra, the refusal to enjoin was put upon the ground that the proper remedy was by motion to stay execution, while per contra, the cases of Caruthers v. Hartsfield, Blakeslee v. Murphy, and Connell v. Stilson, supra, hold that a concurrent legal remedy is not always sufficient ground for refusing to enjoin the judgment.

Where the judgment is erroneous merely, or only voidable and not void, a...