Walling v. Lebb

• Decision Date: 25 October 1932
• Citation: 15 P.2d 370,140 Or. 691
• Parties: WALLING v. LEBB et al. [*]
• Court: Oregon Supreme Court

15 P.2d 370

140 Or. 691

WALLING v. LEBB et al. ^[*]

Supreme Court of Oregon

October 25, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Suit by Ben F. Walling against J. S. Lebb and others. From a judgment dismissing the suit, plaintiff appeals.

Affirmed.

On March 21, 1932, the plaintiff filed this suit in equity to annul a judgment in law secured on February 16, 1926, by defendant J. S. Lebb in an action brought by Lebb against this plaintiff, as defendant, on August 2, 1921. The defendants herein pleaded estoppel, laches, and negligence on the part of the plaintiff. The trial court, after hearing the evidence and arguments of counsel, and considering all the evidence and exhibits in the case, found "that the judgment in the case of Lebb v. Walling, H-5833 rendered by the Circuit Court of the State of Oregon for the County of Multnomah on the 16th day of February, 1926, was not fraudulently obtained ***; that the plaintiff, Ben Walling, had actual knowledge of said judgment within ten days of its rendition, and ***, with knowledge of said judgment, took no action of any kind to have the same set aside for over five years." The court further found that the plaintiff, Ben Walling, "was guilty of negligence and laches, and the equities in the case are with the defendants." The plaintiff's case was dismissed, and he has appealed to this court.

G. E Hamaker, of Portland (Dow V. Walker, of Portland, on the brief), for appellant.

Leo Levenson and W. W. Dugan, Jr., both of Portland (Gus J Solomon, of Portland, on the brief), for respondents.

BROWN, J. (after stating the facts as above).

Among the reasons urged by plaintiff in this cause to justify the annulment of the judgment at law is the alleged failure of the complaint in that case to state facts sufficient to constitute a cause of action.

The writer does not concur in this contention. The pleader in drafting his complaint in that case painted the defendant therein as a deep-dyed defrauder who had wronged the plaintiff, and then alleged facts that constituted fraud on the part of that defendant. True, the complaint in that case was not concise in its statement of facts, nevertheless the matter contained therein was sufficient to constitute fraud. But suppose, for the purpose of argument, that that pleading was insufficient. That fact, in itself, would not be ground for the annulment of the judgment rendered in the case.

In the case of Redfield v. First Nat. Bank of Brigham City, 66 Utah, 459, 244 P. 210, the Supreme Court of Utah, in passing upon the matter of defective pleadings, held: "Where court has jurisdiction of subject-matter and of person, equity will not restrain enforcement of judgment, nor vacate it, because complaint is fatally defective." Syl., point 3. The same view is taken by the Oklahoma Supreme Court in the case of Stauffer v. Watts, 73 Okl. 68, 174 P. 1031, 1032 where it was held: "Where the court has jurisdiction of the subject-matter and the parties with power to grant relief, the fact that the petition may be defective in stating a cause of action, if the relief sought by the petitioner can be ascertained, the judgment rendered thereon is not void." Syl., point 2. Also see Christerson v French, 180 Cal. 523, 182 P. 27, and the many authorities contained therein in support of the proposition that a judgment is not void if the court has jurisdiction of the parties and the subject-matter irrespective of whether the complaint states a cause of action, as long as it apprises the defendant of the nature of plaintiff's demand, and the case of United States National Bank of Portland v. Humphrey, 49 Idaho, 363, 288 P. 416, which affirms this doctrine. This principle is enunciated in 23 Cyc. 927, where the author says, in substance, that a proceeding to vacate a judgment cannot be sustained on any grounds which, with proper care and diligence, could have been pleaded in defense to the action.

The question of the right to vacate a judgment rendered in an action at law has been before our own court from time to time, and the position taken by the court has been clearly stated. Therefore no good can result from an attempt to enlarge upon what has already been written upon the subject. The question was thoroughly digested in the case of Olsen v. Crow, 133 Or. 310, 290 P. 233, 235, and we call attention to that case, wherein the court said, in part:

"From the earliest times in the jurisprudence of Oregon (see Wells, Fargo & Co. v. Wall, 1 Or. 295) to the decision of the recent case of Dixon v. Simpson, 130 Or. 211, 279 P. 939, the public policy of this jurisdiction has demanded that there should be an end of litigation, 'and the courts look with a jealous eye upon suits which have for their object the setting aside of a judgment at law.'

"In the case at bar, the story told by the record tends to show that, for nearly three years after the rendition of the judgment against them, Leonard Olsen and Myrtle...