Union Storage & Transfer Co. v. Smith

• Decision Date: 28 May 1953
• Docket Number: No. 7364,7364
• Citation: 79 N.D. 605,58 N.W.2d 782
• Parties: UNION STORAGE & TRANSFER CO. v. SMITH et al.
• Court: North Dakota Supreme Court

Page 782

58 N.W.2d 782

79 N.D. 605

UNION STORAGE & TRANSFER CO. v. SMITH et al.

No. 7364.

Supreme Court of North Dakota.

May 28, 1953.

Syllabus by the Court.

1. Garnishment proceedings are dependent upon the rendition of a valid judgment in the main action and the jurisdiction of the court to render judgment in the main action may be attacked in the garnishment action.

2. An attorney under his general authority has control over matters of procedure with respect to the remedy and in behalf of his client has authority to waive the timely filing of a complaint as required by Section 27-0824, NDRC 1943 where a summons in proper form has been validly served.

3. Process that is amendable cannot be regarded as void nor can it be attacked collaterally.

4. After a full hearing has been had and an order made denying a motion, the consideration of the second motion based upon the same state of facts is a matter resting in the sound discretion of the trial court.

5. An order denying a motion to vacate a judgment, which order is based in whole or in part on discretionary grounds, is an appealable order under Section 28-2702, paragraph 2, NDRC 1943.

6. Void judgments may be subject to collateral attack, but voidable judgments are not.

7. A judgment of a court of record may be stricken down by collateral attack only for jurisdictional defects appearing on the face of the record.

8. In a garnishment action in aid of execution the garnishee may attack the judgment in the main action upon the ground that the court rendering it is shown on the face of the record to be without jurisdiction but may not attack that judgment upon grounds which would merely render that judgment voidable, the attack made by the garnishee being a collateral and not a direct attack.

9. Section 28-2901, NDRC 1943 vests in the trial court discretionary power, upon such terms as may be just, to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect at any time within one year after notice of entry of judgment. An application for the exercise of this power is addressed to the sound judicial discretion of the court and his disposition thereof will not be disturbed on appeal unless it plainly appears that the court abused his discretion.

10. The showing of the garnishee in support of his motion to vacate the default judgment rendered against him in the garnishment action is examined and it is held: that the trial court did not abuse his discretion in denying the motion.

Paul Thonn, Fargo, for plaintiff.

George E. Duis, Fargo, for defendant and garnishee.

MORRIS, Chief Justice.

On January 19, 1952, Roy G. Froling made personal service on Donald H. Smith of a summons in an action entitled 'In County Court, County of Cass. Union Storage and Transfer Co. a corp., Plaintiff vs. Donald H. Smith, Defendant.' By this instrument defendant was

'summoned to answer the complaint in this action, a copy of which is or will be filed in the office of the Clerk of Court, in and for the County of Cass and State of North Dakota, and to serve a copy of your answer upon the subscriber within twenty days after the service of this summons upon you, exclusive of the day of service. * * *.'

The summons and the complaint referred to therein were filed in the office of the Clerk of County Court, Cass County, North Dakota, March 28, 1952, which it will be noted was considerably more than twenty days after the service of the summons. On March 24, 1952, Paul G. Thonn, attorney for plaintiff, subscribed and swore to an affidavit before Roy G. Froling, reciting:

'that the summons and complaint in said action were served upon the defendants, therein in Cass County, on the 19 of Jan. 1952 19__, as appears by the affidavit of one Roy G. Froling; that more than twenty days have elapsed since the service of said Summons and Complaint as aforesaid and that no answer or demurrer has been served upon affiant nor has appearance been made in any manner by defendants.'

This affidavit is erroneous in that no complaint was served upon the defendant and at the time of the execution of the affidavit no complaint had been filed in the office of the clerk of court as recited or promised in the summons. On March 28, 1952, this affidavit, together with a sworn statement of account, a motion for judgment, and an order for judgment signed by the judge of the County Court of Cass County were filed in the office of the clerk of the county court and judgment was by him that day entered in favor of the plaintiff and against Donald H. Smith for the sum of $435, principal, interest, and costs.

On April 4, 1952, the plaintiff caused to be served upon the defendant and upon Harold G. Reed, dba, Reed Cleaners, a demand for payment prior to garnishment. On April 9, 1952, the plaintiff caused to be served upon Smith, the defendant, and upon Reed, as garnishee, a garnishment summons and affidavit for garnishment. The affidavit shows that this proceeding was brought in aid of an execution issued upon the judgment previously entered in the main action. The original papers and proof of service in the garnishment proceeding were filed in the office of the Clerk of County Court of Cass County on April 30, 1952. On the same day Paul G. Thonn executed an affidavit of default of the garnishee and filed it, together with a motion for judgment against the garnishee by default, whereupon the judge of the county court signed an order for judgment against the garnishee and judgment was forthwith entered against him.

On May 23, 1952, the defendant Smith made a motion to vacate the judgment entered in the original action supported by this affidavit stating that upon the day after the service of summons he employed an attorney, one R. N. Pritchard, to interpose an answer and that the defendant first learned that the plaintiff had taken judgment against him by default on May 9, 1952, and thereafter immediately consulted and retained his present attorney, George E. Duis, to take proceedings to have the default opened and a defense interposed, and that he is advised by this attorney that he has a valid and substantial defense upon the merits. The defendant also proffered a proposed answer which was a general denial. The original complaint and the sworn statement of account upon which the default judgment was rendered show that it was based upon a claim for handling cartage and storage of goods, wares, and merchandise by the plaintiff for the defendant on and between January 2, 1948, and February 2, 1952. In resistance to this motion to vacate the judgment the plaintiff presented the affidavit of Roy G. Froling to the effect that he was called several times by Pritchard, attorney for defendant Smith, and that Pritchard told him that he could not get Smith to come to the office to sign an answer and demand for bill of particulars. The plaintiff also presented the affidavit of Pritchard, who stated that he could not get Smith to sign an answer and that if there was any neglect in the matter, it was entirely on Smith's part and not the neglect of the attorney Pritchard.

In addition to the affidavits submitted on the motion to vacate and set aside the judgment, oral testimony was taken on May 23, 1952, wherein Smith testified that when the summons was served upon him it had no complaint attached to it and he took it to Pritchard the same day it was served and gave Pritchard $25 to file an answer and that he believed an answer had been filed. He produced Pritchard's receipt for the amount paid. Later he had trouble in finding Pritchard and said that 'when I did find him, why, he said that he had been to the Courthouse and found that there was no complaint and that we could disregard it, would not even have to be answered.' Smith did not know that a judgment had been taken against him until Froling called him and told him that a judgment had been taken by default. The matter was continued until June 3, 1952, when a further hearing was had which consisted of the presentation of affidavits of resistance above mentioned and arguments by counsel. At the close of this hearing the court ordered that the motion to vacate and set aside the judgment in the main action be denied. No appeal was taken from that, nor was a rehearing asked thereon.

On June 9, 1952, the defendant Smith and the garnishee Reed joined in a notice of motion entitled in the garnishment action to vacate the judgments in the main action and in the garnishment action. The motion made pursuant to this notice came on for hearing before the court on June 20, 1952. At this hearing garnishee filed an affidavit denying liability on the ground that he had no property or moneys belonging to the defendant Smith under his control at the time he was served with the demand. He filed another affidavit explaining why he failed to answer the garnishment summons, the main portion of which indicates that he is a very busy businessman; that he is ignorant of the procedure in garnishment matters; and that due to the pressure of business he forgot all about the garnishment proceedings and did not know that a judgment had been taken against him until June 3, 1952, and did not realize he was required to make a disclosure when he was not indebted to the defendant. The showing of the defendant Smith at this hearing is substantially the same as it was on the hearing of the former motion, except that he filed a proposed answer of considerable length setting forth that the goods, wares, and merchandise upon which the original storage claim was based were not the property of the defendant but the property of a Mr. Limon Brown.

An examination of the original complaint shows that it is dated January 18, 1952, and is signed by Paul G. Thonn, attorney for plaintiff, Fargo, North Dakota, but is not verified. At the bottom of the complaint appears this notation in the handwriting of R. N. Pritchard:

'Time of filing waived

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