Vaule v. Miller

• Decision Date: 20 October 1897
• Citation: 69 Minn. 440,72 N.W. 452
• Parties: VAULE v MILLER.
• Court: Minnesota Supreme Court

69 Minn. 440

72 N.W. 452

VAULEvMILLER.

Supreme Court of Minnesota.

Oct. 20, 1897.

(Syllabus by the Court.)

1. Section 5029, Gen. St. 1894, to the effect that, where a judgment of a justice of the peace has remained undisturbed for a period of not less than two years, such justice shall be presumed to have had jurisdiction of the subject-matter of the action and the parties thereto at the time of rendering such judgment, where it appears by his docket that he did acquire and had such jurisdiction, construed, and held, that after the elapse of the limitation of two years such a judgment cannot be impeached in a collateral action or proceeding, by extrinsic evidence showing that the justice did not in fact have jurisdiction to render the judgment, but it may be impeached when directly attacked.

2. An action may be maintained to set aside a judgment valid on its face on the ground that the summons was never served on the defendant. Such an action is not a collateral, but a direct, attack upon the judgment.

3. In an action on a judgment the defendant may, by way of counterclaim and equitable defense, set up facts which would justify a court of equity in canceling the judgment on the ground that the summons had never been served on him, and have, in case he establishes his defense, the judgment canceled.

4. It is not sufficient to establish such defense by a mere preponderance of the evidence. The evidence must be clear, and practically conclusive.

5.Evidence considered, and held, that it does not sustain the verdict.

6. An entry in a justice's docket in these words: “Execution returned wholly unsatisfied. Costs on execution, $19.50,”-is not sufficient to establish, prima facie, the plaintiff's right to recover in an action upon the judgment $19.50 as accrued costs on execution.

7. A judgment of a justice of the peace in an action where he omitted to require a restitution bond pursuant to Gen. St. 1894, § 5024, is irregular, but not void.

Appeal from district court, Polk county; C. H. Brown and Frank Ives, Judges.

Action by Ole J. Vaule against David Miller. Judgment for defendant, and plaintiff appeals. Reversed.

Ole J. Vaule, in pro. per.

Martin O'Brien, for respondent.

START, C. J.

This is an action commenced June 1, 1895, upon a judgment recovered in a justice court on June 18, 1885, in an action wherein John Ovre was plaintiff and the defendant herein, David Miller, was defendant, for the sum of $58.15. The judgment was assigned to the plaintiff herein. The answer in this action was in the nature of a counterclaim to the effect that the justice court was without jurisdiction to render the judgment, because (a) the summons was never served upon the defendant, personally or otherwise, and he never appeared in the action; (b) no bond was filed before the entry of the judgment as required by law (Gen. St. 1894, § 5024),-and prayed as affirmative relief that the judgment be canceled. On the first trial of this action the district court dismissed it, and on appeal to this court a new trial was granted. Vaule v. Miller, 64 Minn. 485, 67 N. W. 540. On the last trial of the case the plaintiff introduced in evidence the docket of the justice, showing the entry of the judgment; also the following entry, among others; “June 11. Summons returned, having been personally served on the defendant. See summons on file.” The summons and constable's return thereon, and a written assignment of the judgment, were also given in evidence by the plaintiff, who then rested. The return on the summons was in these words: “State of Minnesota, County of Polk-ss.: I hereby certify and return that at the town of Angus, in said county and state, on the 9th day of June, 1885, I served the within summons upon the within-named defendant, David Miller, by reading, handling to, and leaving a true copy at his usual place of abode, with a person of suitable age and discretion, who was then residing therein. Ed. Charboneau, Constable.” The docket contained an entry in these words: “July 3rd, 1885. Execution issued and delivered to Charboneau. December 15th, 1885. Execution returned wholly unsatisfied. Costs on execution, $19.50.” The defendant, over the objection and exception of the plaintiff, gave oral evidence for the purpose of showing that no bond was given before the entry of the judgment, and that the summons was never served as certified by the officer or otherwise. The defendant admitted that he learned of the existence of the judgment in July, 1885. At the close of the evidence the plaintiff requested the court to instruct the jury to return a verdict in his favor for $77.65 and interest, the amount of the judgment and the $19.50 accrued costs on the execution. This was denied, and he then requested that the jury be instructed to return a verdict for him in the sum of $58.15 and interest. This request was also denied. The jury returned a verdict for the defendant. Thereupon the plaintiff made a motion for judgment in his favor for $77.65 and interest, notwithstanding the verdict, which was denied. Judgment was entered for the defendant, from which the plaintiff appealed.

It was held on the former appeal in this action that the return of the officer on the summons was sufficient, that the justice acquired jurisdiction, prima facie, at least, to hear and determine the case; and that it was not essential to the validity of the judgment that his docket should show the fact that a security bond was filed before the judgment was entered. This decision is the law of this case. Bradley v. Norris (Minn.) 69 N. W. 624. It was not decided on the former appeal whether the defendant could or could not impeach the judgment by showing that the summons was not in fact served upon him. Nor was it decided, except inferentially, what the effect upon the judgment a failure to file the bond would be. We now hold that the failure to file a security bond is not a jurisdictional defect rendering the judgment void, but is an irregularity only. But, as already suggested, it was decided in this case on the former appeal that it does appear by the docket of the justice and the judgment itself that the justice did have jurisdiction of the subject-matter of the action and the parties thereto at the time of rendering the judgment. We have, then, a judgment of a justice court in an action wherein it is shown by the docket and on the face of the judgment that the justice had jurisdiction of the subject-matter and the parties at the time of rendering the judgment, and it is sought by the defendant, nearly 10 years after the rendition of the judgment, and notice thereof to him, to impeach the judgment by showing by extrinsic evidence jurisdictional defects. It seems to be conceded by both parties hereto that such an attack upon this judgment is a collateral attack. If the concession be correct, then, under the provisions of Gen St. 1894, § 5029, this judgment could not be so impeached. The statute, so far as here material, is in these words: “In all cases where a judgment has been rendered by a justice of the peace, and the same has not been appealed from, or reversed, or annulled, and has remained undisturbed for a period not less than two years, such justice of the peace shall be presumed to have had jurisdiction of the subject matter of the action and the parties thereto at the time of rendering such judgment, where it appears by the docket, that at the time of rendering such judgment, he did acquire such jurisdiction.” The defendant claims that this statute cannot be...