Whitaker v. First Nat. Bank of Basin

• Decision Date: 14 January 1925
• Docket Number: 1163
• Citation: 32 Wyo. 288,231 P. 691
• Parties: WHITAKER v. FIRST NAT. BANK OF BASIN [*]
• Court: Wyoming Supreme Court

231 P. 691

32 Wyo. 288

WHITAKER v. FIRST NAT. BANK OF BASIN ^[*]

No. 1163

Supreme Court of Wyoming

January 14, 1925

ERROR to District Court, Big Horn County; HARRY P. ISLEY, Judge.

Action by Thomas Whitaker against the First National Bank of Basin. There was a judgment for defendant and plaintiff brings error.

Affirmed.

Brome &amp Hyde for plaintiff in error.

A sheriff has no authority to serve a summons outside his county; the writ should be directed to the sheriff of the proper county; the return, showing that the Sheriff of Big Horn County appointed the Sheriff of Natrona County to make the service, and the affidavit of the Natrona County officer that he made the service, are nullities; Munson v. Cattle Co., 126 P. 275; Kinkaid v. Frog, 31 P. 704; a summons must be served in the mode provided by the statutes to give jurisdiction; Robbins v. Clemmens, 41 O. S 285; Newlove v. Woodworth, 9th (Nebr.) 502; Sanford v. Edwards, 47 P. 212; Lillard v Brannin, 91 Ky. 511; personal service must be made within the jurisdiction of the county; Pennoyer v. Neff, 95 U.S. 714; Simonsen v. Typer, 285 F. 240; Bank v. Lattimore (Okla.) 149 P. 1099; the judgment being void it may be attacked collaterally; State v. Elleson, 12 A. R. L. 1159; Hogg v. Link, 90 Ind. 346; Jones v. Pattee (Ia.) 8 N.W. 663; Bennett v. Wilson (Cal.) 65 P. 1068; a writ directed to the wrong officer, but served by the right one cures the defect; 32 Cyc. 533; Askew v. Stevenson, 61 N.C. 288; a writ directed to the wrong officer is amendable and not void; Laing v. Raingley, 160 U.S. 531; Burke v. Assn. (Mont.) 64 P. 878; services made, though defective, will not be held void in collateral proceedings; Black 273; Berry v. Dholson (Ore.) 65 P. 601; the alias summons and copy of petition gave defendant ample notice; although irregularly served; Noerddlinger v. Huff, 72 P. 73; Freeman on Judgment, Sec. 126; Bank v. Co., 32 P. 902.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

In this action for the recovery of real property, the judgment of the district court was for the defendant, and the plaintiff brings the case here on error.

The defendant bought the property at a sale pursuant to a judgment of the district court of Big Horn County, Wyoming, in an attachment proceeding against two defendants, one a resident of Big Horn County, and the other, R. H. Ahrens, then owner of the property, a resident of Natrona County, Wyoming.

The plaintiff, who claimed by deed from Ahrens subsequent to the attachment, contended that the judgment and sale in the attachment action were void because Ahrens was not served with summons as required by law and made no appearance in the action.

The undisputed material facts in regard to the service of process on Ahrens in the attachment suit are as follows: An alias summons was directed to the sheriff of Big Horn County who endorsed thereon "at the request and risk of plaintiff," he appointed "Pat Royce, Sheriff of Natrona County, State of Wyoming, to make service of this summons upon R. H. Ahrens in the County of Natrona, State of Wyoming." Thereafter, as appears from the return, Pat Royce, as Sheriff of Natrona County, made service in said county on the defendant, Ahrens, by delivering to him true and correct copies of the summons, petition and writ of attachment.

A summons should be directed "to the sheriff of the county." Sec. 5623, Wyo. C. S. 1920. When the action is rightfully brought in any county, a summons may issue to any other county, against one or more of the defendants. Sec. 5624. A summons should be served by the officer to whom it is directed or by some person not a party to the action, appointed by such officer (Sec. 5627), but we may assume for the purposes of this case, as contended by plaintiff in error, that the statutes do not authorize the sheriff of one county to appoint a person to serve a summons in another county of the state. It would follow that the summons against Ahrens should have been directed to the sheriff of Natrona County. Had it been so directed, and then served just as it was served, it would not be contended that there was any want of jurisdiction.

In this collateral proceeding the judgment in the attachment suit cannot be set aside or disregarded unless it is void for want of jurisdiction. There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. Freeman on Judg., (4th Ed.) Sec. 126. As we said in Clause v. Savings Ass'n., 16 Wyo. 450, 468, 95 P. 54 the decisions are not harmonious as to the particular defects in a summons which will render it void and permit on that ground a collateral attack on the judgment. In the case just cited the sheriff was named as one of several defendants, and the original summons was directed to and served by the coroner. A motion to quash the service was sustained in the district court on the ground that the sheriff was not a party within the meaning of the statute authorizing service of process by the coroner, and that the service by the coroner was improper. This court did not question the decision of the district court on that point, but held, nevertheless, that the summons and service were not void, but voidable only, and that the district court acquired jurisdiction over the defendants served by the coroner. The court said, among other things:

"Where there has been actual personal service, and therefore notice of the action, the weight of authority and the better reasoning favors the theory that a mistake in the direction or address renders the process voidable but not void."

In Freeman on Judgments, Section 126, supra, the author says:

"The fact that defendant * * * was served by some person incompetent to make a valid service * * * on account of which a judgment by default would be reversed on appeal, will not ordinarily make the judgment vulnerable to a collateral attack."

And that:

"So far as personal service of summons is concerned, it seems to us that it should be deemed sufficient to support a judgment when collaterally attacked that the summons was delivered to the defendant under such circumstances as to advise him that it was intended as a service of process upon him."

See, also, State ex rel. v. District Court. (Wyo.), 31 Wyo. 413, 227 P. 378, 381, and authorities there cited and quoted.

We find that it has often been held that a summons directed to the sheriff of one county and served by the sheriff of another is not void. Armstrong v. Kansas City S. R. Co., (C C.) 192 F. 608; Parker v. Barker, 43 N.H. 35; 80 Am. Dec. 130; Campbell v. Stiles, 9 Mass. 217; Chadwick v. Divol, 12 Vt. 499. The same has been held of a summons directed to the sheriff and served by a constable or coroner. Bronson v. Earl, 17 Johns. 63; Simcoke v....