Stokes v. Kingsbury

• Decision Date: 02 April 1917
• Docket Number: 8832.
• Citation: 63 Colo. 27,164 P. 313
• Court: Colorado Supreme Court
• Parties: STOKES et al. v. KINGSBURY.

164 P. 313

63 Colo. 27

STOKES et al. v. KINGSBURY.

No. 8832.

Supreme Court of Colorado

April 2, 1917

Error to District Court, Garfield County; John T. Shumate, Judge.

Suit by Marie K. Kingsbury against Charles A. Stokes and others to restrain the collection of a judgment. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Stokes & Sherman, of Denver (C. W. Darrow, of Glenwood Springs, of counsel), for plaintiffs in error.

J. W Dollison and E. C. Kingsbury, both of Glenwood Springs, for defendant in error.

BAILEY J.

Plaintiffs in error, defendants below, bring this cause here for review on error from the District Court of Garfield County. Defendant in error, plaintiff below, instituted proceedings therein to restrain collection of a judgment rendered against her in the District Court of the City and County of Denver, in favor of Charles A. Stokes and Jesse H Sherman, two of the plaintiffs in error. Jessup, as Sheriff of Garfield County, made a levy upon certain lands of defendant in error, and in that capacity was one of the defendants below and plaintiffs in error here. The complaint as originally filed alleged among other things, lack of service of summons in the original action, and attacked the judgment upon grounds going to the merits of the case. On plaintiff's own motion this complaint was amended and the allegation of lack of proper service withdrawn. Defendants answering, set up, among other things, the plea of a valid judgment, in effect a plea of res adjudicata. Upon preliminary hearing a temporary order was granted restraining defendants below from proceeding with the execution and sale. After what was to all intents and purposes a trial de novo of the issues which were, or might have been, adjudicated in the action in which the judgment in question was rendered, a special verdict was returned, and approved with slight modification by the court, the restraining order was made permanent, and defendants enjoined from attempting to enforce the lien of the judgment, which lien was set aside and held for naught, with damages to plaintiff in the sum of $250.00.

The record here plainly shows that the judgment of the District Court in and for the City and County of Denver, upon which execution issued, which was enjoined, was valid and enforceable, that personal service was had on defendant, and that an answer was filed by her attorney, although judgment was later entered without contest. The record is fair on its face, and the jurisdiction of the court undenied, and the judgment, therefore, not open to collateral attack. That the attack was collateral is established by the great weight of authority, including our own decisions. Black of Judgments, § 253, speaking to this point, says:

'A bill in equity seeking to enjoin the enforcement of a judgment at law, by execution or otherwise, constitutes a collateral attack upon the judgment, and cannot be maintained on account of mere errors or irregularities, but only on a showing that the judgment is void.'

This rule is laid down in Harter v. Shull, 17 Colo.App. at page 166, 67 P. at page 912, and is approved in Cochrane v. Parker, 12 Colo.App. 169, 54 P. 1027:

'A collateral attack on a judgment is in its general sense any proceeding which is not instituted for the express purpose of annulling, correcting or modifying such decree. The fact that the parties are the same and that the defendants seek to attack the decree by allegations in their answer, cannot change the rule or make the attack any the less a collateral one. It is well settled that judgments of a court of competent jurisdiction are not subject to colleteral attack, unless they are void, and by void is meant that they are an absolute nullity.'

It is established law here that where the court has jurisdiction of the parties and the subject matter in a particular case, its judgment, until reversed or annulled in some direct proceeding, is not open to attack by parties or privies in any collateral action or proceeding whatsoever. Trowbridge v. Allen, 48 Colo. 419, 110 P. 193. In Clarke v. Asher, 53 Colo. 313, 125 P. 538, suit was brought in the District Court of La Plata County to enjoin the levy of an execution on a judgment rendered by the County Court of Hinsdale County, where plaintiff in the injunction proceeding was defendant, and defendant therein was plaintiff, as in the case at bar. Injunction was asked on the ground that the judgment was void in that the complaint in the action in which it was rendered failed to state a cause of action. The court quoted Trowbridge v. Allen, supra, with approval, and held that the attack upon the judgment was collateral and without effect to enjoin the execution. The opinion in Clarke v. Asher, supra, must rule this case, as in principle it determines precisely the same questions which are involved and for determination in the case before us.

The defense pleaded by the...