Wick v. Rea

• Decision Date: 11 August 1909
• Citation: 103 P. 462,54 Wash. 424
• Parties: WICK et ux. v. REA et ux.
• Court: Washington Supreme Court

103 P. 462

54 Wash. 424

WICK et ux. v. REA et ux.

Supreme Court of Washington

August 11, 1909

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Henry Wick and wife against John A. Rea and wife. Judgment for defendants, and plaintiffs appeal. Reversed and remanded with instructions.

J. B Bridges and Theo. B. Bruener, for appellants.

Farrell, Kane & Stratton, for respondents.

CHADWICK J.

Plaintiffs allege that on September 24, 1906, they purchased of defendants the S.E. 1/4 of section 24, in township 16 N., of range 4 E. of Willamette Meridian, for which they paid the sum of $5,200. The deed was in form a warranty deed with full covenants. This property had been previously acquired by defendants as purchasers at a tax sale occurring in Thurston county, Wash. This action was brought to recover the value of a 40-acre tract, a legal subdivision of the S.E. 1/4 as described in the deed, upon the theory that plaintiffs were not the owners thereof, and did not have any interest therein subject to conveyance. Judgment is demanded for one-fourth of the full amount paid, or $1.300. Plaintiffs' right of action is made to depend upon the insufficiency of the summons, which is alleged to be wholly void, in that it failed to properly describe the legal subdivisions of the land. The published summons described the land as follows: 'The northeast quarter of the southeast quarter; northeast quarter of the southeast quarter; southeast quarter of the southeast quarter; southwest quarter of the southeast quarter;--all in 24/16/4.' It will be seen that the N.E. 1/4 is described twice, while the N.W. 1/4 is not described at all. It is alleged that this summons is the only summons ever published in the action. This allegation is denied. The judgment in the foreclosure suit recites the following: 'That the plaintiff herein, Thurston county, Wash., is the lawful holder of said certificates of delinquency; that summons and application for a judgment have been served in this proceeding as required by the statutes of the state of Washington, and such statutes complied with in all other respects pertaining thereto'--the whole case going to the sufficiency of the summons and the effect of the recitals in the judgment. The trial court entertained a motion for judgment on the pleadings interposed by defendants, and rendered judgment against plaintiffs, dismissing their complaint.

The trial court held that, this being a collateral attack upon a judgment in a tax foreclosure proceeding, appellants were concluded by the recitals in the judgment. The rule is, and it has been frequently declared by this court, that where the court has jurisdiction of the subject-matter of an action, and the judgment recites due service, when there is nothing in the record to contradict the recitals of the judgment, it cannot be collaterally attacked. Under this rule the evidence upon which the court based its finding need not appear affirmatively in the record. It is enough if the contrary does not appear. Rogers v. Miller, 13 Wash. 86, 42 P. 525, 52 Am. St. Rep. 20; Christofferson v. Pfennig, 16 Wash. 491, 48 P. 264; Kalb v. German, etc., Soc., 25 Wash. 349, 65 P. 559, 87 Am. St. Rep. 757; Peyton v. Peyton, 28 Wash. 278, 68 P. 757, Neordlinger v. Huff, 31 Wash. 360, 72 P. 73; State ex rel. Boyle v. Superior Court, 19 Wash. 128, 52 P. 1013, 67 Am. St. Rep. 724; Dolan v. Jones, 37 Wash. 176, 79 P. 640; Noland v. Arnot, 36 Wash. 101, 78 P. 463; Bock v. Sanders, 46 Wash. 462, 90 P. 597; Peterson v. Lara, 46 Wash. 448, 90 P. 596; Stevens v. Doohen, 50 Wash. 148, 96 P. 1032; Munch v. McLaren, 9 Wash. 676, 38 P. 205; Belles v. Miller, 10 Wash. 259, 38 P. 1050; State ex rel. Ins. Co. v. Superior Court, 14 Wash. 203, 44 P. 131; Kizer v. Caufield, 17 Wash. 417, 49 P. 1064; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959. The converse of this rule follows, and is sustained by the same authorities, so that, although the judgment recites jurisdiction, if a want of jurisdiction affirmatively appears upon the face of the whole record, the judgment will be held to be void upon collateral as well as direct attack. The trial judge accepted the first proposition as the law of the case, and appellants prosecute this appeal upon the theory that we should now hold that a judgment in the form of that before us should not be held invulnerable against collateral attack, for the two reasons: (1) That there are suggestions in several of the former opinions of this court to the effect that evidence de hors the record can be received in all cases to overcome the recitals of the judgment; and (2) the record itself contains evidence of irregular summons which contradicts the recitals of the judgment--thus bringing the case within the second rule quoted. If the case rested here, we would without hesitation affirm the judgment of the trial court, for we would be unwilling to hold that the irregular summons appearing in the transcript contradicted the recitals of the judgment. It may exist, and the finding of the court be true, for jurisdiction may be acquired by a proper service or voluntary appearance after the publication of a defective summons; but we think this case rests upon a principle entirely different from those upon which the case has thus far proceeded. The rule that judgments of a court of record cannot be called in question in a collateral proceeding is one of necessity. The basic reason for the rule is founded on the consideration that the regular and orderly way of trying the validity of judgments is by an appeal or other appropriate proceeding in the case itself, or under the statute permitting a vacation of judgments for certain enumerated reasons. The reason of the rule shows its limitations. It is confined to parties or privies, and does not apply to strangers. Griswold v. Stewart, 4 Cow. (N. Y.) 457.

Appellants in this case are strangers to the record in the foreclosure proceeding. They were not parties or in privity with a party and if they have been prejudiced, or are injuriously affected by the judgment, the rule is that they can attack it on the ground of want of jurisdiction, or, in cases where the facts warrant it, for fraud or collusion. This may be done by plea and proof. 1 Bailey on Jurisdiction, § 233; 2 Freeman on Judgments, 334; 23 Cyc. 1068; Downs v. Fuller, 2 Metc. (Mass.) 135, 35 Am. Dec. 393; Vose v. Martin, 4 Cush. (Mass.) 27, 50 Am. Dec. 750. A better statement of the general rule is found in Sidensparker v. Sidensparker, 52 Me. 481, 83 Am. Dec. 527. On page 489 of 52 Me. (83 Am. Dec. 527), it is said: 'While it is generally true that an erroneous judgment can only be avoided by writ of error, the books abound in cases where manifest injustice would be done to parties...