Walker v. Cronkite

• Decision Date: 28 October 1889
• Citation: 40 F. 133
• Parties: WALKER et al. v. CRONKITE et al.
• Court: U.S. District Court — District of Kansas

40 F. 133

WALKER et al. v. CRONKITE et al.

United States Circuit Court, D. Kansas.

October 28, 1889

J. A Smith and Johnson, Martin & Keeler, for plaintiffs.

Kellogg & Sedgwick and C. N. Sterry, for defendants.

FOSTER J.

The plaintiffs bring their action of ejectment against said defendants to recover certain real estate situate in Lyon county. The plaintiff Walker claims in his petition that he is the owner, and entitled to the possession of said land. This the defendants deny, and allege that in the month of September, 1875, one A. S. Kimball, recovered a judgment in the district court of said Lyon county, Kan., wherein said Thaddeus H. Walker and others were defendants, and wherein it was considered and adjudged by said court that said Kimball and others (defendants in said suit) had recovered judgments against said Walker in several different counties of this state at different times and for different amounts. That said several judgment creditors had filed copies of their judgments in Lyon county, and some of said creditors had levied execution on the lands of said Walker in said county and the court then declared said judgments to be valid liens on said real estate,-- the land in controversy, with others,-- and adjudicated and settled the priorities of the said several judgments, said Kimball's judgment being first, and ordered a sale of said real estate in satisfaction of said judgments in the order of their priority. Defendant further avers that said Thaddeus H. Walker was a party defendant to said proceedings; that he was duly served with the process of the court, and is bound by said record. By reference to the proceedings in that case, it appears from the return of the sheriff of Shawnee county that he served the said summons on said defendant Thaddeus H. Walker by leaving a true copy thereof, with all the indorsements thereon, at the usual place of residence of said defendant Walker. In the judgment it is recited that the court finds 'that said Thaddeus H. Walker was duly served with a summons in said cause on the 2d day of March, A.D. 1875, by the sheriff of Shawnee county, Kan., by leaving a copy thereof at his usual place of residence in said county. ' The defendant further alleges that in pursuance of said judgment an order of sale of said land was duly issued to the sheriff of Lyon county, who, after appraising and advertising the same according to law, sold the same to said A. S Kimball, at public auction, he being the highest bidder therefor, which sale was duly confirmed by the court, and a sheriff's deed made to said Kimball, July 24, 1877, and the same was duly recorded in the office of the register of deeds in said county on the 26th day of July, 1877. That this defendant holds title to said land through several intermediate conveyances from said A. S. Kimball. Defendant for further defense, invokes the statute of limitations. To this answer the plaintiff makes reply, denying that he was ever served with summons in said case, or that he had any place of residence in said state, and avers that he had no notice of said suit until after judgment had been rendered. He makes several other objections to said judgment, all of which have heretofore been considered and adjudicated by this court. To this reply the defendant files a demurrer.

There are two questions presented: (1) Can Thaddeus H. Walker, in a collateral proceeding, and against a bona fide purchaser of said real estate under said judgment, be heard to contradict and impeach the sheriff's return, and the recitations of said judgment? (2) Is he barred by the five-years statute of limitation? Section 16, Code Civil Proc.

It is an elemental rule of law that a personal judgment, rendered without jurisdiction of the person is void, and it has been held that in an action on a foreign judgment the defendant may deny jurisdiction of the court over the person, although such defense impeached the truth of the record. D'Arcy v. Ketchum, 11 How. 165; Amsbaugh v Bank, 33 Kan. 101, 5 P. 584; Borden v. Fitch, 15 Johns. 139; Crepps v. Durden, 1 Smith, Lead.Cas. 844. The question at issue here is quite a different one. Here is the record of a domestic judgment, showing service of summons on the defendant. Under that judgment, and in pursuance of its decree, real estate has been sold under the forms of law, and title passed through several parties, relying on the verity of the record, and the adjudication of a court of general jurisdiction. Can it be that the defendant to such a...