Tube City Mining & Milling Co. v. Otterson, Civil 1385

CourtSupreme Court of Arizona
Writing for the CourtFRANKLIN, C. J.
Citation146 P. 203,16 Ariz. 305
PartiesTHE TUBE CITY MINING AND MILLING COMPANY, Appellant, v. W. H. OTTERSON and HARRY HALL (the Duly Elected, Qualified and Acting Sheriff of the County of Pinal, State of Arizona), Appellees
Decision Date29 December 1914
Docket NumberCivil 1385

146 P. 203

16 Ariz. 305

THE TUBE CITY MINING AND MILLING COMPANY, Appellant,
v.

W. H. OTTERSON and HARRY HALL (the Duly Elected, Qualified and Acting Sheriff of the County of Pinal, State of Arizona), Appellees

Civil No. 1385

Supreme Court of Arizona

December 29, 1914


APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.

The facts are as stated in the opinion.

Mr. Frank H. Hereford and Frank E. Curley, for Appellant.

Messrs. Silverthorn & Sexton, for Appellees.

OPINION [146 P. 204]

[16 Ariz. 307] FRANKLIN, C. J.

The appellee W. H. Otterson had a contract with the appellant, the Tube City Mining and Milling Compnay, for the hauling of fuel oil from Casa Grande to certain mining property of the appellant situate in Pinal county. Having hauled and delivered the oil pursuant to the contract, and the company refusing to pay a balance remaining due on account of the services rendered, the said Otterson did, on the 23d day of May, 1911, file a claim for lien with the county recorder of Pinal county upon the mining property for which said oil was designed for use for his labor in hauling and delivering the same; a copy of the claim for lien being served upon the Tube City Mining and Milling Company. Thereafter, in the month of July, 1911, the said Otterson commenced an action in Pinal county for the foreclosure of his claim for lien. The Tube City Mining and Milling Company appeared in the action and asserted its defense thereto by a motion to strike, a special demurrer, and denials. The motion to strike, the special demurrer, and denials vigorously contested the validity of Otterson's claim for lien for the hauling of the fuel oil. Each method of attack interposed the defense that the statutes of Arizona do not give a lien to the laborer or other person who hauls materials designed for use in or upon any mine or mining claim.

By stipulation of the parties the action was transferred to Maricopa county for trial and further proceedings. The motion to strike and demurrer coming on for hearing before Hon. Edward Kent, judge of the district court, the demurrer was overruled, and the motion to strike was denied. [16 Ariz. 308] In overruling the demurrer and denying the motion to strike, however, Judge Kent expressed the opinion that Otterson's claim for lien was controlled by the case of the Santa Fe, Prescott & Phoenix Ry. Co. v. Arizona Smelting Co., 13 Ariz. 95, 108 P. 256. In the opinion Judge KENT stated:

"Under this decision it seems plain that the plaintiff is not entitled to a lien under the statute for the hauling of the oil. The demurrer, however, to the complaint may not be sustained, for the reason that the complaint asks judgment against the defendant for the value of the services rendered in hauling the oil,, irrespective of the lien. Nor can the motion to strike be granted, for the reason that the items of the lien, as sworn to and filed according to the statute, includes items for furnishing supplies not connected with the hauling thereof."

In this condition of the record statehood intervened, and there was a change in the personnel of the court; Hon. John C. Phillips, judge of the superior court, succeeding Judge Kent. The cause, being at issue on the complaint and answer, was set for a trial on the merits, and the attorneys for defendant duly notified thereof. At the trial which took place on March 20, 1912, the Tube City Mining and Milling Company did not appear, for the reason that a bankruptcy proceeding had intervened, which will presently [146 P. 205] be mentioned. At the trial the court held Otterson's claim for lien to be a valid existing lien, and rendered its judgment foreclosing the lien, and also directing a sale of the property upon which the lien existed as under execution in satisfaction of the judgment. Pursuant to the judgment the property was sold by the sheriff of Pinal county, and on the 24th day of May, 1913, the sheriff made and delivered to the plaintiff Otterson, who was the purchaser, a certificate of sale of the property subject to redemption under the laws of Arizona. From the judgment foreclosing Otterson's claim for lien no appeal was taken nor writ of error prosecuted by the Tube City Mining and Milling Company, and the time therefor having long since expired, the present action was commenced on December 13, 1913, to have the judgment in the foreclosure action annulled, and also to enjoin the sheriff from delivering a deed to the purchaser of the property.

[16 Ariz. 309] It appears from the complaint in the present action that on the 23d day of October, 1911, a petition in bankruptcy was filed against the Tube City Mining and Milling Company. Subsequently, on December 7, 1911, an amended petition was filed, and on the hearing of this amended petition the court in bankruptcy adjudged the mining company an involuntary bankrupt under the acts of Congress relating to bankruptcy. The order of adjudication was made on the 6th day of February, 1912. While the foreclosure suit was pending in the superior court, it does not appear that the adjudication of the defendant's bankruptcy was in any way brought to the attention of that court, and no attention was paid to it. No application for a stay of proceedings was made on that account. The trustee in bankruptcy, if one was appointed, did not seek to intervene or appear in the action in any way. The pleadings and proceedings in the foreclosure suit are set out in the complaint in this action, as also the proceedings in the bankruptcy court. It is alleged that the superior court never acquired jurisdiction of the property upon which the Otterson lien was claimed to exist, because no valid lien was claimed by Otterson, and no lien existed against the property to be foreclosed; that the complaint, therefore, failed to state facts sufficient to constitute a cause of action, hence the judgment of foreclosure is void and of no effect; that during the pendency of the bankruptcy proceedings the Tube City Mining and Milling Company had no right to appear in the action by Otterson to foreclose the lien, nor in any matter affecting the title to any of its property, because of such bankruptcy proceedings intervening; that when the proceedings in bankruptcy were instituted against the Tube City Mining and Milling Company the jurisdiction of the state court to proceed with the suit already pending therein for the enforcement of the lien against its property was taken away, and, upon the adjudication as a bankrupt, the custody of the res passed to the bankruptcy court; and that the bankrupt's discharge fully discharged the debt due said Otterson, and any judgment of the state court rendered therefor. This statement of the case thus epitomized is sufficient to obtain an understanding of the position assumed by appellant in seeking to have the foreclosure judgment annulled. A general demurrer to the complaint was sustained, and, the appellant electing [16 Ariz. 310] to stand on its complaint, judgment followed dismissing the action. The appeal is from the judgment.

We may conveniently catalogue the contentions pressed by appellant under two headings: (1) Did the superior court acquire jurisdiction to hear and determine the foreclosure suit and give the judgment rendered? (2) Did the intervening bankruptcy proceedings take away the jurisdiction of the superior court to proceed with the pending suit for the enforcement of the lien?

The argument of the appellant goes to the proposition that the state court had never obtained jurisdiction of the res, because the asserted lien was invalid, and the complaint seeking to enforce did not state facts sufficient to constitute a cause of action; further, that, by reason of the adjudication in bankruptcy, jurisdiction of the res became vested in the bankruptcy court; that, by reason thereof, the Tube City Mining and Milling Company had no right or authority to subsequently appear in the action in the state court, and the judgment rendered by the state court in its absence was void.

The present action is a collateral attack on the judgment of the superior court foreclosing the lien; collateral at least, in the sense that the judgment is attacked in a separate action, and not on appeal. It is not an attempt to avoid or correct the former judgment in some manner prescribed by the law, but it is an effort to obtain another and independent judgment which will destroy the effect of the former judgment. As the present action is a collateral attack on the former judgment, it must be made to appear that such judgment was rendered without jurisdiction and is void. It is clear that the merits of the foreclosure suit are not now here for consideration. We are not here perplexed with the question whether the judgment of the superior court was correct or incorrect, but the scope of the inquiry is circumscribed to determine if the superior court had jurisdiction to pass upon and determine the validity of the lien. If it had jurisdiction, the judgment cannot be attacked collaterally. If the court has jurisdiction of the cause, it has jurisdiction to pass judgment on the question of the sufficiency of the complaint to state a cause of action, and, even if its judgment on these questions be wrong, it is only error. Neither its judgment on [16 Ariz. 311] either question nor its judgment on the merits of the cause is open to collateral attack. [146 P. 206]

Superior courts are courts of general jurisdiction. They have jurisdiction in cases involving the foreclosure of all mortgages and liens. Such jurisdiction may not be the subject of any controversy. Judgments of courts within the scope of their power to hear and determine are not void, whether right or wrong. If it was within its power to determine the sufficiency of the Otterson claim for lien, as tested by the statutes of Arizona, its action in determining its sufficiency...

To continue reading

Request your trial
55 practice notes
  • State v. Payne, No. 2 CA-CR 2008-0166.
    • United States
    • Court of Appeals of Arizona
    • July 24, 2009
    ...of it is right or wrong.'" State v. Phelps, 67 Ariz. 215, 220, 193 P.2d 921, 925 (1948), quoting Tube City Mining & Mill Co. v. Otterson, 16 Ariz. 305, 311, 146 P. 203, 206 ¶ 11 The trial court in these cases unquestionably was empowered "`to hear and determine cases of the general class to......
  • State v. District Court of Eighth Jud. Dist., 1311
    • United States
    • United States State Supreme Court of Wyoming
    • August 11, 1925
    ...of the subject matter, however erroneous, was conclusive on collateral attack." In Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. N.S. 1916E 303, the complaint, upon which the judgment of the case was founded, sought to enforce a lien, which it was claimed, had......
  • Shattuck v. Shattuck, 4918
    • United States
    • Supreme Court of Arizona
    • March 31, 1948
    ...a collateral attack on the judgment. Freeman on Judgments, 5th Ed., Vol. 1, p. 607, et seq.; Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. 1916E, 303; Henderson v. Towle, 23 Ariz. 377, 203 P. 1085; Le Baron v. Le Baron, 23 Ariz. 560, 205 P. 910; Dockery v. Central......
  • Fitzsimmons v. Okla. City, Case Number: 30848
    • United States
    • Supreme Court of Oklahoma
    • December 15, 1942
    ...Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 84 L. Ed. 329, 60 S. Ct. 317; Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203; Ex parte Henshaw, 73 Cal. 486, 15 P. 110; Adams Express Co. v. Bradley, 179 Ky. 238, 200 S. W. 340; Van Fleet's Collateral Att......
  • Request a trial to view additional results
55 cases
  • State v. Payne, No. 2 CA-CR 2008-0166.
    • United States
    • Court of Appeals of Arizona
    • July 24, 2009
    ...of it is right or wrong.'" State v. Phelps, 67 Ariz. 215, 220, 193 P.2d 921, 925 (1948), quoting Tube City Mining & Mill Co. v. Otterson, 16 Ariz. 305, 311, 146 P. 203, 206 ¶ 11 The trial court in these cases unquestionably was empowered "`to hear and determine cases of the general class to......
  • State v. District Court of Eighth Jud. Dist., 1311
    • United States
    • United States State Supreme Court of Wyoming
    • August 11, 1925
    ...of the subject matter, however erroneous, was conclusive on collateral attack." In Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. N.S. 1916E 303, the complaint, upon which the judgment of the case was founded, sought to enforce a lien, which it was claimed, had......
  • Shattuck v. Shattuck, 4918
    • United States
    • Supreme Court of Arizona
    • March 31, 1948
    ...a collateral attack on the judgment. Freeman on Judgments, 5th Ed., Vol. 1, p. 607, et seq.; Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. 1916E, 303; Henderson v. Towle, 23 Ariz. 377, 203 P. 1085; Le Baron v. Le Baron, 23 Ariz. 560, 205 P. 910; Dockery v. Central......
  • Fitzsimmons v. Okla. City, Case Number: 30848
    • United States
    • Supreme Court of Oklahoma
    • December 15, 1942
    ...Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 84 L. Ed. 329, 60 S. Ct. 317; Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203; Ex parte Henshaw, 73 Cal. 486, 15 P. 110; Adams Express Co. v. Bradley, 179 Ky. 238, 200 S. W. 340; Van Fleet's Collateral Att......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT