United States Building & Loan Association v. Soule

• Decision Date: 05 May 1937
• Docket Number: 6412
• Citation: 68 P.2d 40,57 Idaho 691
• Court: Idaho Supreme Court
• Parties: UNITED STATES BUILDING & LOAN ASSOCIATION, a Corporation, Appellant, v. H. W. SOULE, Alias HENRY SOULE and Wife, ALICE C. SOULE, F. L. SOULE and Wife, MRS. F. L. SOULE, ARTEL ORME and Wife, MRS. ARTEL ORME, Respondents

68 P.2d 40

57 Idaho 691

UNITED STATES BUILDING & LOAN ASSOCIATION, a Corporation, Appellant, v. H. W. SOULE, Alias HENRY SOULE and Wife, ALICE C. SOULE, F. L. SOULE and Wife, MRS. F. L. SOULE, ARTEL ORME and Wife, MRS. ARTEL ORME, Respondents

No. 6412

Supreme Court of Idaho

May 5, 1937

Appeal from District Court, Fremont County; C. J. Taylor, Judge.

Suit by the United States Building & Loan Association against H. W Soule, alias Henry W. Soule, and others, wherein a foreclosure decree was rendered while demurrer was pending. From an order denying the plaintiff's petition for a writ of assistance, plaintiff appeals.

Reversed and set aside.

A. A Merrill, for Appellant.

The decree, at most, was only voidable, and could not be attacked collaterally in a proceeding of this kind. It could only be done by a timely motion to set aside the judgment, or by appeal, or by motion for a new trial. (Bunnell & Eno Inv Co. v. Curtis, 5 Idaho 652, 51 P. 767; Taylor v Hulett, 15 Idaho 265, 97 P. 37, 19 L. R. A., N. S., 535; Wyllie v. Kent, 28 Idaho 16, 152 P. 194; United States Nat. Bank v. Eldridge, 49 Idaho 363, 288 P. 416; Baldwin v. Anderson, 50 Idaho 606, 299 P. 341, 343; Batchoff v. Butte Pacific Copper Co., 60 Mont. 179, 189 P. 132, 136.)

Wilkie & Wilkie and H. W. Soule, for Respondents.

A default judgment entered while a demurrer is on file undisposed of is void and subject to collateral attack. (Vincent v. Black, 30 Idaho 636, 166 P. 923; Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228, 148 P. 374; Crawford v. Pierse, 56 Mont. 371, 185 P. 315; In re Smith et al., 38 Idaho 746, 225 P. 495; Kerney v. Hatfield, 30 Idaho 90, 162 P. 1077; Cuddahy v. Gragg, 46 Cal.App. 578, 189 P. 721; Berry v. Crowell, 55 Cal.App. 534, 203 P. 835.)

The law is well established that whenever a demurrer, answer, or any pleading whatsoever, is on file and not disposed of before default judgment is entered, that both the default and the judgment following are absolutely void. (Freeman on Judgments, vol. 1, sec. 333, pp. 666, 668, 669; Berry v. Crowell, supra; Freeman on Judgments, vol. 1, sec. 322, p. 642, sec. 371, p. 774.)

GIVENS, J. Morgan, C. J., Holden and Ailshie, JJ., concur.

OPINION

GIVENS, J.

--February 17, 1928, respondents H. W. Soule and Alice C. Soule, husband and wife, executed a $ 1,000 real estate mortgage to appellant. August 15, 1934, appellant filed foreclosure proceedings, summons was served August 21, 1934, on all respondents except Mrs. H. W. Soule, i. e., Alice C. Soule, whom the decree recites was served by publication. September 12, 1934, H. W. Soule filed a demurrer to the complaint, and states with regard to service thereof:

". . . . and this affiant says that on or about the 12th day of September, 1934, he filed his general demurrer to Plaintiff's complaint by and through his attorney, F. L. Soule, of St. Anthony, Idaho, and at the time of filing the said demurrer, no default nor judgment had been entered and was not so entered until the 18th day of December, 1934; that said demurrer was on file undisposed of at the time of the entry of the alleged default and when the said alleged decree was entered. That affiant mailed a copy of said demurrer to A. A. Merrill, attorney for plaintiff, at Idaho Falls, Idaho, with postage fully prepaid at the time the same was mailed as aforesaid."

A. A. Merrill, one of the attorneys for appellant makes affidavit to the effect that he never received the demurrer. The above showing on the part of respondent H. W. Soule is thus indefinite and only inferentially states or indicates when the demurrer was served inasmuch as there is no date of mailing "aforesaid" set forth in the affidavit. The trial court however evidently proceeded upon the theory that the demurrer was served and we may so assume herein without thus deciding.

December 18, 1934, default of all defendants was entered and a decree of foreclosure rendered as to all defendants:

". . . . against the defendant, H. W. Soule, otherwise known as Henry W. Soule, and in foreclosure against the defendant, Alice C. Soule, for the sum of $ 1304.58 and plaintiff's costs . . . .

"That the defendants herein, and each and all of them . . . . be forever barred and foreclosed of all right, claim or equity in and to the mortgaged premises and every part and portion thereof. . . ."

with a deficiency against respondent H. W. Soule which appellant acknowledged as satisfied on May 5, 1936. Execution was issued December 18, 1934. January 22, 1935, on execution sale, Sheriff's Certificate of Sale was issued to appellant, and on January 25, 1936, a Sheriff's Deed on Foreclosure was issued to appellant. February 26, 1935, demand was made of H. W. Soule and Alice C. Soule, his wife, for possession of the premises, and upon refusal appellant filed its amended petition for a writ of assistance on April 18, 1936. An answer thereto was filed May 8, 1936, together with supporting affidavits alleging that since a demurrer was on file, undisposed of, at the time the default judgment was entered it was void. The appeal herein is from an order, August 13, 1936, denying the writ.

Respondents take the position that the judgment was void and may be attacked by what they concede to be the collateral proceedings herein. Appellant urges that the judgment was only voidable and not subject to collateral attack, and the showing for relief therefore insufficient.

The authorities cited by counsel for appellant and respondents do not exactly cover the instant situation, holding generally that judgment by default should not be rendered against a defendant who has filed a demurrer to the complaint where it remains undisposed of; that a premature entry of judgment before time to answer has expired is void; and others that it is voidable.

The better reasoned rule is well stated in McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731, at 733, under a situation almost identical to the one herein:

"On appeal, this court has uniformly held that judgments by default, rendered when there is a plea on file, which plea is not a nullity, are erroneous, and many cases have been reversed for that reason. Beginning with the case of Dean v. McKinstry, 10 Miss. 213, 2 S. & M. 213, and ending with the case of Dalton et al. v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821, this court has announced the rule that a judgment by default, rendered at a time when a plea is on file, even though it was defective, is an erroneous judgment, and, for that reason, the case would be reversed.

"There seems to be no exception to this rule in the various appellate courts throughout the country. But our attention has not been called to a single case in which a judgment has been condemned as absolutely void. It may be that such a judgment might be vacated, as having been rendered through mistake, in a court of equity; but, where a court has jurisdiction of the subject-matter and of the parties, and renders a judgment at a term of court, it is without power to set aside such judgment after the term of court has elapsed (citing cases).

"In the case at bar it will be noted that the court distinctly found that no plea was on file, and so recited in the judgment. In other words, the judgment contained everything necessary to show jurisdiction of the court and proper rendition of the judgment.

"But it may be said that the court erroneously found a fact to exist which was not true, as now disclosed. Then, if that be true, the court erroneously decided, as a matter of law, that it could render a judgment by default while a plea, good in form, was on file. That was an error of law that did not involve the jurisdiction of the court as to the subject-matter and the persons, and it would not render such judgment by default void."

Likewise the Alabama court said in Endowment Department, etc., G. U. O. O. F., v. Harvey, 6 Ala. App. 239, 60 So. 602 at 604:

"As to the second proposition; the fact that the court rendered judgment by default against defendant when demurrers were on file, while error, yet does not render the judgment void, and the error cannot be corrected by common-law certiorari. Appeal is the proper remedy for this, as decided in Ex parte Haynes, 140 Ala. 196, 198, 37 So. 286. . . ."

To the same effect, where pleadings were on file, see Gray v. Hall, 203 Cal. 306, 265 P. 246, distinguished and sustained on this point in Baird v. Smith, 216 Cal. 408, 14 P.2d 749 at 751, which also distinguishes by its reasoning the cases cited by respondents on this point; Chehalis Coal Co. v. Laisure, 97 Wash. 422, 166 P. 1158 at 1160, and cases there cited.

Although this court in Smith v. Clyne, 16 Idaho 466, 101 P 819, did not pass upon whether a default judgment entered while a demurrer was on file was void or...