State ex rel. Bank of Chadron v. The District Court of Weston County

• Decision Date: 19 March 1895
• Citation: 39 P. 749,5 Wyo. 227
• Parties: STATE EX REL. BANK OF CHADRON v. THE DISTRICT COURT OF WESTON COUNTY
• Court: Wyoming Supreme Court

39 P. 749

5 Wyo. 227

STATE EX REL. BANK OF CHADRON v. THE DISTRICT COURT OF WESTON COUNTY

Supreme Court of Wyoming

March 19, 1895

ORIGINAL APPLICATION or suggestion for the writ of prohibition to prevent action by the District Court of Weston County, and William S. Metz, the judge thereof, in a proceeding brought in that court to vacate a judgment after the term. The facts are stated in the opinion.

Writ of prohibition denied.

Allen G. Fisher, for petitioner, cited in support of the application, Louchiene v. Strouss, 49 Wis. 623; Braden v. Rutenberger, 18 W. Va.; Stump v Long, 84 N.C. 616; Trier v. Herman, 44 Hun.; Altman v. Gabrial, 28 Minn. 132; McCulloch v Doak, 68 N.C. 267; Maxwell Pl. & Pr., 730; 1 Yaples Code Pr., 611; R. R. Co. v. Doubson, 17 Neb. 450; Armstrong v. Taylor Co. Court, 15 W.Va. 190; 19 Am. & Eng Ency. L., 275.

E. E. Lonabaugh and Baird & Churchill, for respondent, contended that the district court had jurisdiction of the proceeding; that the prohibition proceedings were prematurely instituted; that any order the district court might make in the premises would be appealable; and that such court had not acted upon the question of jurisdiction submitted to it, but such question was still pending, and cited, Myers v. Myers, 6 O. St., 222; Hintrager v. Sumbardo, 54 Ia. 604; State v. McDowell, 10 So. 174; Leonards v. Bartels, 4 Colo., 95; Broder v. Sup. Ct., 103 Cal. 121; Monson v. Dist. Ct., 147 U.S. 14; Goldsmith v. Owen, 26 S.W. 8; Mines, &c., v. Supr. Ct., 91 Cal. 101; Dobson v. Westheimer, Wyo. (36 P. 626), see 4 Wyo.; State v. Hall, 10 So. 196; 2 Spelling on Ex. R., secs. 1772 and 1729 and cases cited; People v. Dist. Ct., 11 Colo. 574; State v. Judge, 11 La. Ann., 696; State v. St. Paul Mun. Ct., 26 Minn. 182; Harris v. Brooker, 8 Wash., 138; State v. Henry, 6 So., 837; State v. Judges, 37 La. Ann., 845; Ex-parte McMechen, 12 Ark. 70; State v. Laughlin, 9 Mo. App., 486; Barnes v. Gottschalk, 3 Mo. App., 111; R. R. Co. v. Supr. Ct., 59 Cal. 471; State v. Judge, etc., 29 La. Ann., 806; 2 id., 236; Hanger v. Keating, 26 Ark. 51; Turner v. City, 78 Ga. 683; Chester v. Cobby, 52 Cal. 516; R. R. Co. v. Com'rs., 127 Mass. 50; Havemeyer v. Supr. Ct., 84 Cal. 327.

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

The relator, the Bank of Chadron, a corporation organized and existing under the laws of the State of Nebraska, brought its action in the district court of Weston county against one Martin C. Anderson, upon judgment obtained against said Anderson in the county court of Dawes county, Nebraska, and at the April, 1894, term of the district court of Weston county a personal judgment was rendered against said Anderson, and at the same time an order was entered requiring one John Gunther, a garnishee, to pay the amount of his indebtedness to said Anderson, not exceeding the amount of such judgment, into court, to be held by the clerk thereof until the further order of the court. After the term at which the judgment was rendered, and within one year and before the second term of said court after the rendition of said judgment, the said Anderson filed his petition in said court for the vacation of said judgment. The petition was filed in the action in which the judgment was rendered, using the title of the original action, in which petition it was prayed, among other things, that the said Bank of Chadron be made defendant to said petition and be summoned therein. Upon the presentation of this petition to the district judge, an order was made by him requiring that notice of the filing of said petition be given to the plaintiff (Bank of Chadron) by delivering a certified copy of such order to the attorney of record of said plaintiff, and that the plaintiff be required to plead to said petition on or before the 15th day of February, A. D. 1895. An affidavit was thereafter filed in said district court as a foundation for service upon the Bank of Chadron by publication; the affidavit for service by publication being verified on the 25th day of January, A. D. 1895, and a notice for the purpose of obtaining service by publication was published in a newspaper in said Weston county, the first publication being made on the 8th day of February, A. D. 1895. At the time that the petition to vacate the judgment was presented to the district judge, he made a further order requiring and directing the clerk of said court to hold any and all moneys that may come into his hands or be paid into his court on said judgment, either by John Gunther or any other person, until the further order of said court or the judge thereof.

On the first day of February the relator filed in this court his suggestion or petition for writ of prohibition, setting forth substantially the foregoing facts, excepting the proceedings taken for the purpose of obtaining service by publication, which proceedings were unknown to the relator at the time of the filing of his petition herein.

The petition of the relator further alleged that immediately upon being informed of the entry of the said orders by the judge of said court, he made application in writing to the judge of said court, suggesting unto him the lack of jurisdiction to make such orders in the premises, and directing his attention to the fact that he and his court were wholly without jurisdiction, unless the petition be filed in form as in other actions, and summons be directed to issue therein, which said suggestion of the lack of jurisdiction was considered by the said judge in chambers and was denied and overruled.

The answer filed herein denies the overruling of the motion or suggestion attacking the jurisdiction of the court, and alleges that hearing and ruling thereon had been postponed until the next term of the said court.

The reply, in this respect, attempts to raise an issue of fact, and sets forth a letter written by the judge of the district court to the attorney for the relator, referring to the petition to vacate the judgment, and inferentially to the motion or suggestion by the relator, in which letter the following language was used by the judge:

"Your application to vacate that order is accordingly overruled. If the matter is in shape it will come up in March term at Newcastle."

The "order" referred to is evidently that directing the clerk to hold all moneys until the further order of the court, and it is the application to vacate that order which is overruled. The answer disclaims any jurisdiction by reason of service of notice upon the attorney of record and any intention to act under that service or the order directing the same.

We would be inclined to confine a consideration of the question of fact thus raised to the disclosures of the record rather than extrinsic matters not shown thereby, but so far as we are advised by all the facts before us, including the letter from the judge, it appears that any motion or suggestion of lack of jurisdiction which may be pending in the lower court remains therein undetermined. Many courts hold such a determination a prerequisite to the allowance of the writ: indeed, this may be said to be the general rule; and were there no other reason, this would be a sufficient one in this case for the denial of the writ as prayed for.

The application for the writ of prohibition is presented and based upon the theory that the proceedings for the vacation of the judgment are not in conformity with the statutory requirements, and that for such reason the district court is without jurisdiction to act therein. Such proceedings are governed by sections 2701 and 2705 of the Revised Statutes of Wyoming. By the provisions of section 2701 the district court is authorized to vacate or modify its own judgment or order after the term at which the same was made, for various reasons or causes specifically referred to therein. Among the causes so mentioned is "fraud practiced by the successful party in obtaining a judgment or order." The ground for vacating the judgment appears to be fraud of the successful party and his attorneys in procuring the same.

Section 2705 is as follows: "The proceedings to vacate the judgment or order on the grounds specified in subdivisions four, five, six, seven, eight, nine and ten of section twenty-seven hundred and one, shall be by petition, verified by affidavit setting forth the judgment or order, the grounds to vacate or modify it, and if the party applying was defendant, the defense to the action, and on such petition a summons shall issue and be served as in the commencement of an action."

It seems to be conceded that the ground alleged for the vacation of the present judgment is included in one or more of the subdivisions of section 2701, mentioned in section 2705, above quoted.

It is contended on behalf of the relator that the proceedings for the vacation of the present judgment upon the grounds laid in the petition as filed, must be by a petition separately filed as an independent action, upon which summons must issue, rather than by petition therefor filed in the original action, and that the failure to prosecute the vacation proceedings in such manner does not invest the court with any jurisdiction to take any action therein.

The reply of the relator also complains of the insufficiency of the affidavit and notice for the purpose of obtaining constructive service upon the Bank of Chadron.

Although we are of opinion that the better practice, under section 2705, is the filing of a petition as a separate proceeding yet we are not prepared at this time to say that such petition cannot be filed in the original action, and we expressly refrain from deciding that question, as this application must be disposed of upon other grounds, which to our mind are...