Smith v. Morrill

• Decision Date: 14 November 1898
• Citation: 12 Colo.App. 233,55 P. 824
• Parties: SMITH v. MORRILL et al. [1]
• Court: Colorado Court of Appeals

55 P. 824

12 Colo.App. 233

SMITH v. MORRILL et al. ^[1]

Court of Appeals of Colorado

November 14, 1898

Error to district court, Jefferson county.

Bill by Martha E. Smith against Wiley E. Morrill and others. There was a decree for defendants, and plaintiff brings error. Reversed.

W.T. Hughes, O.B. Liddell, and T.B. Stuart for plaintiff in error.

Morrison & De Soto, for defendants in error.

WILSON J.

This is a proceeding in equity seeking to perpetually enjoin proceedings against plaintiff (the plaintiff in error) under a judgment claimed to be void by reason of want of service of summons or other process upon her. The material facts, as set forth in the complaint, are that on December 15, 1892 judgment by default was rendered against this plaintiff and others in favor of defendant Morrill by the district court of Clear Creek county in an action of debt therein pending wherein Morrill was plaintiff and this plaintiff and others were defendants; that no service of summons or other process in said action was had upon her, although the return of the sheriff of Arapahoe county, wherein she resided, alleged personal service upon her on October 13th preceding; that the first knowledge she had of the existence of the said judgment was when thereafter an execution was issued thereon, and levied upon certain realty possessed by her in Arapahoe county; that to release her realty from the lien of the execution, and to avoid the expense and delay of legal proceedings to set aside and annul the judgment, she offered to pay and did pay to plaintiff the sum of $290, upon the express promise and agreement that he would release plaintiff and her husband, P.T. Smith, a co-defendant in the action, absolutely from said judgment, and that she also paid to said plaintiff the further sum of $1 in consideration of the release of the levy upon her realty in Arapahoe county; that this contract and agreement of release was made on the 21st day of January, 1893; that thereafter the plaintiff, Morrill, assigned said judgment to defendant Charles E. Worth; that in March, 1895, another execution issued upon the judgment, and was placed in the hands of defendant George Kelly, the acting sheriff of Jefferson county, by virtue of which he levied upon, and was proceeding to sell, certain realty of plaintiff situate in said county; that the indebtedness upon which the judgment was rendered was not contracted by plaintiff, nor by any one by her lawfully authorized; and that she was neither legally nor equitably bound by the contracts out of which said indebtedness was said to have arisen, or any part thereof. The prayer of the complaint was that a temporary writ of injunction issue, restraining the defendants, and each of them, from further proceedings under the judgment, and that the defendant sheriff be restrained from proceeding with the sale; that upon final hearing the defendants be perpetually restrained in the premises aforesaid, and the plaintiff have judgment for injunctive and equitable relief, and for such other as to the court may seem meet and proper. Defendant Morrill alone made answer. Trial was wholly to the court, which made the following special findings: (1) That no service of process was had upon plaintiff, Martha E. Smith; (2) that the plaintiff had failed to prove that the judgment had been released; (3) that the plaintiff, Martha E. Smith, had an adequate remedy under section 75 of the Code, and that, therefore, she could not resort to equity. Judgment of dismissal was rendered, and also against plaintiff for costs.

There is seemingly considerable conflict of authority on the pivotal questions on which the determination of this case turns. Much of it is more apparent than real, arising both from the looseness with which many courts have used the words "void" and "voidable," as applied to judgments, and from a failure on the part of the profession to properly scrutinize and appreciate the sense and connection in which the words are used. It is an elementary principle, founded upon natural right and justice, and universally recognized, that every man must have an opportunity to be heard in his defense, and that no court can pronounce a valid judgment against a party, unless it has in some lawful manner acquired jurisdiction of the party. "Without such jurisdiction, a judgment is invalid and void. By it no rights are devested; from it no rights can be obtained." As well said by Mr. Black: "It is a familiar and universal rule that a judgment rendered by a court having no jurisdiction of either the parties or the subject-matter is void, is a mere nullity, and will be so held and treated whenever and wherever, and for whatever purpose, it is sought to be used or relied on as a valid judgment. The effect of a want of jurisdiction is clearly stated in an early decision of the United States supreme court (Elliott v. Peirsol, 1 Pet. 328) in the following language: 'Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and, whether its jurisdiction be correct or otherwise, its judgment, until reversed, is regarded as binding upon every other court. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to the recovery sought, even prior to a reversal, in opposition to them. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.' " 1 Black, Judgm. § 218. From imperative reasons of sound policy, not necessary to now discuss, it is wisely held, however, that the records of courts of general jurisdiction should and do import verity. If, therefore, a judgment record contains facts showing that the court had jurisdiction of the party against whom judgment was pronounced, the judgment is classified as voidable only; that is to say, it bears upon its face all of the requisites and elements of a valid judgment, and will be so treated until determined otherwise in some proper judicial proceeding. If, however, the want of jurisdiction itself appears in the record, the attempted judgment bears upon its face its own condemnation, the proof of its own invalidity, and announces in itself to the world that no valid rights have been acquired under it by or against any one. Such a judgment is termed void; that is, a nullity prima facie and absolutely, of record as well as of fact. It will neither be recognized nor treated as being clothed with even an appearance of validity in any court or in any judicial proceeding. It must be borne in mind, however, that the courts do not recognize any difference, nor is there any, between the invalidity of the two classes of judgments. There can be no degrees in void. The classification is based upon the fact that the one shows upon its face that it is void, and that with the other this must be proven by evidence dehors the record. The latter is none the less void when the lack of jurisdiction in the court to render it is established. To hold otherwise would not only be subversive of the fundamental principles upon which all judicial authority must rest, but would be a self-evident contradiction, and the sanction of an unwarranted invasion of personal rights, in plain violation of all constitutional guaranties. The distinction between, and division into, classes, has reference solely to the manner, character, and form of the proceedings by which it is permissible to assail and avoid the judgment. If it belongs to the voidable class, it can be impeached only in a direct proceeding instituted for that specific purpose. It cannot be attacked collaterally. If embraced in the other class, its validity may be questioned in any proceeding where it may be presented. The reasons for this distinction between methods of attack are not essential to be considered in the determination of the issues before us. It is sufficient to say that they are sound and conclusive. There is no necessity for special citation of authorities to support the propositions here advanced. They are conclusively sustained by the fundamental principles of law, and by the reasoning of the courts and of all law writers by whom the subjects of void and voidable judgments are discussed.

The judgment which is sought to be avoided and enjoined in the case at bar belongs to the class designated as voidable, by reason of the fact that the record recites proper service of process upon the plaintiff herein, who is complaining. We are, therefore, at once confronted with the question--the most material and decisive in the case--as to whether or not the proceeding instituted to avoid this judgment is proper and can be maintained. Is it a direct or collateral attack upon the judgment? In our opinion, it is clearly the former. Mr. Van Fleet defines a direct attack on a judicial proceeding to be an attempt to avoid or correct it in some manner provided by law. He further defines a collateral attack to be an attempt to avoid, defeat, or vacate the proceeding, or to deny its force and effect, in some manner not provided by law, and adds that, as there are only two ways to attack a judicial proceeding,--direct and collateral,--it is obvious that this latter definition complements the one given of direct attack, and that both are self-evident. Van Fleet, Coll. Attack, §§ 2, 3. In Morrill v Morrill, 20 Or. 96, 25 P. 362, a collateral attack is aptly defined to be "an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling, correcting, or modifying the decree, or enjoining its execution." It would follow, therefore, that, if the proceeding was instituted for any one of these express purposes, it would be a direct attack. In ...