Weimer v. Augustana Pension & Aid Fund

• Citation: 179 Okla. 572,67 P.2d 436,1937 OK 241
• Decision Date: 06 April 1937
• Docket Number: Case Number: 26368
• Parties: WEIMER v. AUGUSTANA PENSION and AID FUND et al.
• Court: Supreme Court of Oklahoma

1937 OK 241

67 P.2d 436

179 Okla. 572

WEIMER v. AUGUSTANA PENSION and AID FUND et al.

Case Number: 26368

Supreme Court of Oklahoma

Decided: April 6, 1937

Syllabus

¶0 1. JUDGMENT - Judgment Void and Subject to Vacation on Motion Only When Void on Its Face.

A judgment is void and subject to be vacated on motion only when its invalidity appears from inspection of the judgment roll.

2. SAME - Process - Presumption That Copies of Petition and Notice of Publication Were Properly Mailed to Defendant Where Record Silent.

The method for making proof of mailing copies of petition and notice of publication to a defendant under the provisions of section 186, O. S. 1931, is not provided by statute, and it will be presumed in support of a judgment that they were properly mailed. The silence of the record on this point will not overthrow a judgment of a court of general jurisdiction.

3. SAME - Statutory Relief Against Judgment of Court of General Jurisdiction for Irregularities - Resort to Equity When Statutory Proceeding Inapplicable.

A court of general jurisdiction may relieve against its own judgment for irregularities under section 556, O. S. 1931, but the application must be presented within three years of the rendition of the judgment. When the statutory proceeding is inapplicable, either because the judgment was not rendered in a court of general jurisdiction or because the time for relief has expired, equity will intervene.

4. SAME - Showing of Diligence Required by Equity Where Relief Sought Against Judgment for Want of Jurisdiction Over Defendant.

Equity requires, when its aid is sought to relieve against a judgment for the want of jurisdiction over the defendant, that the applicant must plead, and show by proof that is clear, that he has been diligent to discover and protect his rights.

Appeal from District Court, Coal County; Gaylord R. Wilcox, Assigned Judge.

Action by the Augustana Pension and Aid Fund on a note and mortgage, commenced April 12, 1929. Judgment entered for plaintiff. Walter Weimer, a defendant, filed a motion to vacate the judgment of foreclosure. From the order denying relief on the motion, defendant Walter Weimer appeals. Affirmed.

E.R. Smith and E.J. Gilder, for plaintiff in error.

G.P. Ralls, Willingham & Farris, L.O. Carson, and Ray S. Fellows, for defendants in error.

PER CURIAM.

¶1 The parties will be referred to as they appeared in the lower court. The Augustana Pension and Aid Fund, as plaintiff, filed in the district court of Coal county, a petition against Jessie E. Sullivan et al., including as a defendant Walter Weimer, the plaintiff in error in this cause. The petition prayed for judgment on a note and the foreclosure of a mortgage covering lands in Coal county, and alleged in addition thereto that certain defendants, including Walter Weimer, claimed some right, title, and interest in and to the land sought to be foreclosed which constituted a cloud on the title, and prayed for a foreclosure and that its mortgage be adjudged superior to the claim of all the defendants.

¶2 On the 16th day of May, 1929, an affidavit of the plaintiff's attorney was filed to obtain service by publication. The affidavit alleged that after due diligence the plaintiff was unable to make personal service of summons on the defendant Weimer, who was a nonresident of the state and not within the state at the time of the filing of the affidavit, but was out of the state of Oklahoma. It was then alleged that the action was one in which service by publication was authorized. The affidavit did not give the residence of the defendant. Weimer failed to appear, and on July 12, 1929, judgment was rendered on the note, foreclosing the mortgage lien and ordering the mortgaged land to be sold in payment of the judgment.

¶3 The judgment, among other things, recited:

"It appearing to the court that all of the defendants have been served with summons and notice by publication as required by law and that all of said defendants are now in default"

- and further recited that the mortgage lien and the judgment of foreclosure were superior to the claim of the defendants, including Walter Weimer, and decreed that all persons claiming under the defendants be forever barred and foreclosed of all lien, right, title, interest, estate, or equity in or to the lands, or any part thereof.

¶4 On October 22, 1934, Walter Weimer filed his motion to vacate the judgment on two grounds, as follows:

"Comes now Walter Weimer specially for the purpose of this motion and for no other purpose and moves the court to vacate, set aside and hold for naught as to this movant the judgment, rendered in this cause on the 12th day of July, 1929, on the ground that said judgment is void as to this movant, as appears from the judgment roll in said cause, because:

"(1) The purported substituted service on this movant by publication is void and did not give this court jurisdiction over this movant and did not give this court power to render said judgment against this movant, for that no copy of the petition in said cause and no copy of the publication notice in said cause were mailed to this movant at his place of residence or business and no excuse was offered for failure to so mail a copy of said petition and a copy of said publication notice to this movant at his place of residence or business, as appears from the judgment roll in this cause.

"(2) This movant has from the year 1901 to the present time been a permanent resident and citizen of Okmulgee, in Okmulgee county, state of Oklahoma, and no service of summons in said cause was ever served upon him and no other valid process or notice was given him of the pendency of said action, and therefore this court was without jurisdiction to render judgment against this movant in this cause.

"(Signed) E.J. Gilder,

"(Signed) E.R. Smith,

"Attorneys for Movant, Walter Weimer."

¶5 At the trial Weimer introduced the clerk of the court, identifying by him the original files and the entries on the appearance docket. These were offered in evidence. A demurrer to the evidence interposed by the plaintiff was sustained. On the order denying the motion to vacate, appeal is taken to this court.

¶6 First. The motion is made under provisions of section 563, O. S. 1931, which authorizes the vacation of a void judgment at any time on motion by any party affected by it.

¶7 It is settled in this state and very generally elsewhere that a judgment is void only when a jurisdictional defect appears on the face of the record. Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Adams v. Carson, 165 Okla. 161, 25 P.2d 653: B-R Electric & Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919; Samuels v. Granite Savings Bank & Trust Co., 150 Okla. 174, 1 P.2d 145.

¶8 The judgment for which vacation is authorized by section 563, O. S. 1931, is one void on its face. On hearing of a motion to vacate a void judgment, the court searches its record or roll and determines whether the judgment is valid or void. Evidence is unnecessary because the court takes judicial notice of the proceedings had in the cause. The judgment in the instant case is not void on its face.

¶9 The statute does not require proof of mailing a petition and notice of publication by filing affidavit or otherwise enrolling the fact on the judgment roll. Section 186, O. S. 1931, requires that a copy of the petition and notice of publication be mailed to the defendant, unless the plaintiff shall make and file an affidavit that the residence or place of business of the nonresident defendant is unknown to the plaintiff and cannot be ascertained by means within his control. It is contended that, because the excuse for not mailing such a petition and notice must be made to appear by an affidavit of the plaintiff filed with the clerk of the court, likewise it is essential that compliance with this section must also be shown upon the record by affidavit. The statute does not specifically require that the affidavit of mailing the petition and notice of publication shall be made or filed with the clerk, and the failure of the record or the appearance docket or the files of the court to show such an affidavit is not jurisdictional. Presumption is indulged in favor of the validity of the judgment, and the absence from the files of an affidavit of proof, or the failure of the appearance docket to show the filing of an affidavit will not overthrow the presumption. The judgment is not void because of silence of the record regarding the mailing in compliance with section 186, O. S. 1931. The judgment is void only when the record shows affirmatively that the plaintiff knew the address...