State ex rel. Delmoe v. District Court of Fifth Judicial Dist.

• Decision Date: 01 June 1935
• Docket Number: 7436.
• Citation: 46 P.2d 39,100 Mont. 131
• Parties: STATE ex rel. DELMOE v. DISTRICT COURT OF FIFTH JUDICIAL DIST. et al.
• Court: Montana Supreme Court

46 P.2d 39

100 Mont. 131

STATE ex rel. DELMOE v. DISTRICT COURT OF FIFTH JUDICIAL DIST. et al.

No. 7436.

Supreme Court of Montana

June 1, 1935

Rehearing Denied June 28, 1935.

Original proceeding for a writ of supervisory control by the State, on the relation of Alex Delmoe, against the District Court of the Fifth Judicial District and Lyman H. Bennett, Judge thereof.

Peremptory writ issued.

S. C Ford and Lew L. Callaway, both of Helena, for relator.

P. E Geagan, of Butte, and John F. McGough, of Boulder, for respondents.

ANDERSON Justice.

This is an original proceeding wherein a writ of supervisory control or other appropriate writ, is sought directed to the district court of Jefferson county and the Hon. Lyman H. Bennett, the judge thereof. An order to show cause was issued on the filing of the verified petition. The cause came on for hearing on motion to quash, answer, and return.

On November 27, 1911, Louis Allred and others commenced an action in the above district court against Vincent Delmoe and others to adjudicate the waters of Little Pipestone creek, being cause No. 1870 in the records of that court. Vincent Delmoe's answer and cross-complaint was filed therein on March 29, 1912. Thereafter, on November 11, 1912, the affidavit of T. T. Black, one of the plaintiffs in that action, was filed reciting that certain persons therein named were not parties to the action, but who, as affiant was informed and believed, claimed some right to the waters of Little Pipestone creek, and therefore were necessary parties to the action. The court on the same day entered an order reciting that upon motion of counsel for the plaintiff it was ordered and directed that the persons and a corporation named in the affidavit, also the Little Pipestone Dairy & Mercantile Company and some other individuals, "be joined as parties defendant in the above-entitled cause, and that the complaint on file herein be amended by the clerk of this court wherein the action is pending by inserting the names of the persons mentioned in the affidavit." The clerk was not directed to amend the complaint by inserting the name of the Little Pipestone Dairy & Mercantile Company by this order.

The minutes of that court of November 11, 1912, recite as follows: "Order was made directing that [certain named persons] and Little Pipestone Dairy & Mercantile Company be made party defendants in this action and alias summons issued and that the plaintiffs have ten days from this day in which to reply to answer now on file." Reply was filed by the plaintiffs to the separate answer of Vincent Delmoe on November 12, 1912.

On April 27, 1914, a decree was entered adjudicating the waters of Little Pipestone creek. The decree was entered pursuant to written stipulation incorporated therein as between the parties appearing in the action. As to the defendant Vincent Delmoe in that action, it was adjudicated that he was the owner of, and entitled to the use of, 40 inches of water appropriated as of the date of April 1, 1880, and 150 inches appropriated as of date April 1, 1882, from the above-named creek. The minutes of the court for that day recite that the court ordered the default of the defendant Little Pipestone Dairy & Mercantile Company "be entered for want of appearance in said cause." It was stated in the decree that, the defendant Little Pipestone Dairy & Mercantile Company "not appearing in said suit and cause," its "default for not appearing therein" had "been heretofore duly entered according to law." It was further adjudicated therein "that each and every party to this suit who has failed to appear and answer against whom said default has been duly entered, the said parties being as follows, *** Little Pipestone Dairy & Mercantile Company *** has no right, title or interest and no right to use any of the waters of the said Pipestone Creek, Little Pipestone Creek, its or their tributaries." A perpetual injunction was decreed against the nonappearing parties, and "that each of them, his heirs, assigns, personal representatives, tenants, subtenants, agents, attorneys, servants, and employees, and every or either of them, any person acting through or under them, was perpetually restrained from interfering or intermeddling with or molesting any of the ditches or water rights of any and all the parties as therein fixed, ascertained, adjudged and decreed."

The petitioner herein, Alex Delmoe, is the successor in interest of Vincent Delmoe, one of the defendants in cause No. 1870, and Antone Delmoe is the successor in interest of the Little Pipestone Dairy & Mercantile Company. The judgment and decree made and entered in case No. 1870 has not been appealed from, revised, or set aside.

In addition to the foregoing facts, the relator herein alleges that during the year 1934 Antone Delmoe had full knowledge of the terms and provisions of the above judgment respecting the use of the waters of Little Pipestone creek and tributaries, and the right of relator to use the same as the successor of Vincent Delmoe; that Antone Delmoe during the months of June, July, and August, 1934, willfully and intentionally diverted the waters of this creek and its tributaries, and used the same upon lands owned by him, so that none of the water ran down the creek for relator's use, except not over 40 inches during the month of June of that year; that during the months of July and August, 1934, the relator needed water from this creek and its tributaries for the irrigation of more than 200 acres of land, to which 190 inches of the waters of that creek were appurtenant; that on March 7, 1935, relator filed an affidavit in the action in the district court of Jefferson county, showing the use of the waters of Little Pipestone creek by Antone Delmoe in violation of the judgment and decree, and that an order was entered by the respondent judge directing Antone Delmoe forthwith to show cause before the court why he should not be punished for contempt. He appeared and filed answer, asserting that he was not guilty of any contempt. The contempt proceeding coming on for hearing before the respondent judge, relator offered in evidence the judgment roll in cause No. 1870, consisting of the complaint, the affidavit of T. T. Black, the order of the district court, the answer of Vincent Delmoe, and the reply of the plaintiffs therein, the minute entries of the court mentioned supra, and others, together with the judgment. The respondent judge sustained an objection of counsel for Antone Delmoe to the introduction of the judgment roll in evidence in the contempt proceeding, and thereupon Delmoe was discharged from contempt and the proceeding dismissed.

It is asserted that the district court either had no jurisdiction to make and enter the order or, having jurisdiction to hear and determine the proceeding, erred in making the order of dismissal, from which the relator has no appeal or adequate remedy, other than a writ of review or other suitable writ.

The question presented is whether the judgment roll in cause No. 1870, so far as it affects the defendant in the contempt proceeding, who is a successor in interest of the Little Pipestone Dairy & Mercantile Company, was subject to attack in that proceeding. Manifestly, the attack there made was collateral. By "collateral attack" is meant "every proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio." Burke v. Inter-state Savings & Loan Ass'n, 25 Mont. 315, 64 P. 879, 881, 87 Am. St. Rep. 416; Haupt v. Simington, 27 Mont. 480, 71 P. 672, 94 Am. St. Rep. 839. In the Burke Case, supra, this court said: "Unless void on its face, or upon the inspection of the judgment roll, a judgment cannot be successfully attacked collaterally. *** When, however, the judgment of a court of general jurisdiction, acting within the ordinary scope of that jurisdiction, is assailed collaterally, the presumption of jurisdiction over the person of the defendant is conclusive, unless upon the face of the judgment roll a lack of jurisdiction affirmatively appears. A judgment, when collaterally attacked, must be tried by inspection of the judgment roll, and by that alone." The presumption of jurisdiction over the person of the defendant is conclusive, unless upon the face of the judgment roll a lack of jurisdiction affirmatively appears. Haupt v. Simington, supra; Burke v. Inter-state Savings & Loan Ass'n, supra; Coburn v. Coburn, 89 Mont. 386, 298 P. 349.

The judgment roll in this case does not contain the alias summons mentioned in the court minutes of November 11, 1922, nor any return or proof of service thereof, or any process upon the Little Pipestone Dairy & Mercantile Company. It contains nothing to indicate that any appearance was ever entered in the water right suit by the Little Pipestone Dairy & Mercantile Company. The question thus presented is, Was the presumption of the validity of the judgment conclusive in this state of the record?

Generally a judgment is not open to collateral attack merely because the record fails to show the service process by which the court acquired jurisdiction of the defendant; if the record is silent on this point, it will be presumed that lawful and sufficient process was duly served. 1 Black on Judgments (2d Ed.) § 271; Sommermeyer v. Schwartz, 89 Wis. 66, 61 N.W. 311; Elder v. Richmond Gold & Silver Min. Co. (C. C. A.) 58 F. 536; Hamer v. Cook, 118 Mo. 476, 24 S.W. 180; In re Eichhof's Estate (Eichhoff v. Eichhoff), 101 Cal. 600, 36 P. 11; Dye Brothers v. Butler, 209 Ky. 199, 272 S.W. 426. This rule is likewise applicable where, as here, the record is silent...