Stivers v. Byrkett

• Decision Date: 28 June 1910
• Parties: STIVERS v. BYRKETT.
• Court: Oregon Supreme Court

109 P. 386

56 Or. 565

STIVERS v. BYRKETT.

Supreme Court of Oregon

June 28, 1910

On petition for rehearing. Denied.

For former opinion, see 108 P. 1014.

EAKIN, J.

Plaintiffs move for a rehearing principally upon the ground that the judgment is void, and that in the opinion we state that it is not attacked on that ground. We treated the motion as an application to open a default under section 103, B. & C Comp., and plaintiffs now urge that the judgment is void for the reason that the liability, upon which the judgment was rendered, is joint, and, one of the joint debtors having died before the filing of the answer, the court has no jurisdiction to enter the judgment; that the court has power to, and should, vacate it at any time; and, if vacated as to one judgment debtor, it must be vacated as to both.

There is a conflict in the authorities as to what is the status of a judgment rendered against joint or joint and several debtors in case one of such debtors dies before the rendition of the judgment. In Mitchell v Schoonover, 16 Or. 211, 17 P. 867, 8 Am.St.Rep. 282, a case ripe for judgment, which was rendered the same day and a few hours after the death of one of the joint debtors, this court held, that "the decided weight of authority seems to be to the effect that if a court of general jurisdiction or a court which has acquired full jurisdiction over the cause, and over the parties, renders a judgment for or against a party after the death of such party, the judgment is not for that reason void. It may be erroneous, but until reversed by some appropriate proceeding it is valid." But assuming, without deciding, that the judgment as against J.H. Glide is void, as contended by plaintiffs, the question arises whether it is void as to both plaintiffs, or is only irregular as to J.H. Glide,

Jr. The courts of several states have followed the opinion in Hall v. Williams, 6 Pick. (Mass.) 232, 17 Am.Dec 356, upon this question, where it is said that, "the judgment being entire if it is a nullity with respect to one, it is also in the whole," viz.: Massachusetts, New Hampshire, Maine, and Maryland. This holding is not based upon the fact that the liability was a joint one, but that, whether joint or joint and several, the judgment is an entirety. This question is considered in an exhaustive note in 91 Am.St.Rep. 362, appended to the case of Engstrand v. Kleffman, 86 Minn. 403, 90 N.W. 1054, in which the case of Hall v. Williams, and the decisions following the rule there announced, are severely criticised as unsound. To the same effect is a note in 32 Am.Dec. 604, to the case of St. John and Witherell v. Holmes, 20 Wend. (N.Y.) 609. In these notes many cases are cited, expressly denying the rule announced in Hall v. Williams. It is not necessary to review or cite these cases here, but we find that the great weight of authority and the better reasoning is that the judgment against joint or joint and several debtors, if void as to one, is not necessarily void as to those judgment debtors who were within the jurisdiction of the court. To this effect are Engstrand v. Kleffman, 86 Minn. 403, 90 N.W. 1054, 91 Am.St.Rep. 359; Lenox v. Clarke, 52 Mo. 115; North & Scott v. Mudge & Co., 13 Iowa, 496, 81 Am.Dec. 441; Ash v. McCabe, 21 Ohio St. 181; Mercer v. James, 6 Neb. 406; Wood v. Olney, 7 Nev. 109; Council Bluffs Sav. Bank v. Griswold, 50 Neb. 753, 70 N.W. 376. Such a judgment, however, is held to be erroneous, and will be reversed on appeal as to all the defendants ( Powers v. Irish, 23 Mich. 429; Hughes v. Lindsey, 10 Ark. 555), although some of the courts hold that even on appeal the judgment will be reversed only as to the party over whom the court did not have jurisdiction ( Ricketson v. Richardson, 26 Cal. 149; Wood v. Olney, 7 Nev. 109; Ash v. McCabe, 21 Ohio St. 181). And many hold that it may be set aside upon motion on the same ground.

But the question, whether the judgment is irregular or erroneous, is not before us. If we treat the motion to set aside the default fault as an application to set aside the judgment as irregular, still plaintiffs are not entitled to relief, as the motion comes too late. The judgment was rendered on October 2, 1907, and this application was not made until June 29, 1908; long after the adjournment of the term. The court is without jurisdiction to entertain it, except under section 103, B. & C. Comp., save when the judgment is void. In Brand v. Baker, 42 Or. 426, 432, 71 P. 320, it is held that a court has inherent power to vacate its judgments or orders at any time during the term at which they were rendered, but after that time it can only do so in pursuance of the provisions of the statute. Section 103, B. & C. Comp. To the same effect is Conant's Estate, 43 Or. 532, 73 P. 1018; Deering v. Quivey, 26 Or. 556, 38 P. 710; and Ladd v. Mason, 10 Or. 308.

Counsel further urges that the answer containing the counterclaim upon which the judgment was rendered was not served upon J.H. Glide, Jr., and, without service, the court...