Tibbs v. Hancock
| Decision Date | 09 June 1934 |
| Docket Number | 6224 |
| Citation | 255 N.W. 572,64 N.D. 647 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J.
Affirmed.
Henry E. Johnson, for appellant.
In jurisdictions in which courts of equity exist independent of courts of law, the suit to set aside a judgment or an action in accord and satisfaction on said judgment must be in a court of equity. 15 R.C.L. § 180.
The county court with increased jurisdiction is not vested with equity powers in this state. Mead v. First Nat Bank, 138 N.W. 365.
In instant case defendant can claim no greater rights in the judgment than the original holder. 15 R.C.L. § 233.
H E. Mielke, for respondent.
While the court has not ruled in the case at bar, on the special appearance, the objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings, in fact it may be raised for the first time on appeal. 2 R.C.L. 89; 7 R.C.L. 1043; 3 C.J. 755.
A suit in equity to obtain relief from a judgment is strictly a proceeding in personam and the decree adjudges the rights of the parties inter esse in relation to that judgment. 7 R.C.L § 74; Gin Co. v. Arnold, L.R.A.1918B, 511; Joyner v. Joyner (Ga.) 18 L.R.A.(N.S.) 647; Armstrong Co. v. Railway Co. L.R.A.1916E, 232, 129 Minn. 104, 151 N.W. 917; Smith v. Smith, 52 L.R.A.(N.S.) 1061, 123 Minn. 431, 144 N.W. 138.
A judgment rendered by a court of general jurisdiction is void, if it had, at the time of the rendition of the judgment, no jurisdiction of the person of the defendant or the subject matter of the litigation. Shane v. Peoples, 25 N.D. 188, 141 N.W. 739.
A court of chancery has no power in the strict sense of the term to set aside a judgment at law, and in a suit in equity to obtain relief from a judgment in no sense assails the court in which the judgment was rendered. 15 R.C.L. 725; Wonderly v. Lafayette Co. 150 Mo. 635, 51 S.W. 745, 73 Am. St. Rep. 474, 45 L.R.A. 386.
A court of equity cannot interfere with the records of another court or strike therefrom a judgment entered in such other court. The relief is limited to enjoining parties from proceeding to enforce the judgment. Marshall v. Holmes, 141 U.S. 589; Yancey v. Downer, 5 Litt. 8, 15 Am. Dec. 35; Given's Appeal, 131 Pa. 260, 15 A. 468, 6 Am. St. Rep. 795; Boring v. Ott, 138 Wis. 260, 119 N.W. 865, 19 L.R.A.(N.S.) 1080.
The jurisdiction of a court over the subject matter of a cause of action must be conferred by law. 7 R.C.L. 1042.
The power to open, vacate or set aside judgments is restricted to the courts in which they have been rendered, and cannot be opened before any court of concurrent jurisdiction. 15 R.C.L. 689.
A judgment at law cannot be impeached collaterally in a court of equity. 23 Cyc. 1063, 1070; 34 C.J. Equitable relief against judgments; Knight v. Harrison, 43 N.D. 76, 174 N.W. 623; Fisher v. Dolvig, 29 N.D. 561, 151 N.W. 431; United States v. Burdick, 1 Dak. 142, 46 N.W. 571; Joy v. Elton, 9 N.D. 428, 83 N.W. 875; Libby v. Central Wisconsin Trust Co. (Wis.) 197 N.W. 206.
If the court had jurisdiction of the parties, then a judgment rendered by default is immune from collateral attack, the same as other judgments. Eker v. Deichert, 57 N.D. 474, 222 N.W. 615; Jones v. Knosp (Neb.) 135 N.W. 1049.
In the absence of statutory authority, one court has no power to review the decree of another court, 15 C.J. 1130 and 1141.
No person can be sued for a breach of contract who is not a party to the contract. 30 Cyc. 102; Dicey, Parties 30 and 225.
This is an appeal from an order sustaining a demurrer to the complaint.
The complaint alleges, in substance, that in September 1929, the plaintiff purchased from the defendant, Hancock, land in Ward county at the agreed price of $ 200.00 and thereafter Hancock employed the defendant, Mielke, and attorney to bring suit in the county court of Ward county against the plaintiff on said contract for the purchase price of said land and on December 13, 1930, judgment was entered in the county court against the plaintiff for $ 200.00 and costs, and judgment against the J.I. Case Company, in a garnishee proceeding, for the sum of $ 136.00, which latter sum was deposited with the clerk of the county court by the said J.I. Case Company; that the judgment against the garnishee was transcribed and entered in the district court of Ward county on March 23, 1933. That in August, 1931, Hancock employed O. B. Herigstad, an attorney to bring an action against the plaintiff for the cancellation of the contract for the sale of land and after the service of the summons and complaint upon the plaintiff, who was the defendant in that action, the said action was settled and the plaintiff executed his quitclaim deed to the said premises to W. G. Hancock as a full and complete settlement for the cancellation of said contract held by the said Chas. A. Tibbs and also for a full and complete satisfaction of the judgment entered in the county court against his plaintiff. That said quitclaim deed was accepted by the said W. G. Hancock, through his attorney, but the said Hancock has failed to satisfy the said judgment against this plaintiff and has now threatened to collect the said judgment and has refused to satisfy the same; that the defendant, H. E. Mielke, now claims that he holds an assignment of said judgment and claims to hold an attorney's lien thereon in the sum off $ 136.00 and that the said H. E. Mielke filed the said purported attorney's lien in the county court of Ward county on or about January...
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