Wunnicke v. Leith

• Decision Date: 27 March 1945
• Docket Number: 2294
• Citation: 61 Wyo. 191,157 P.2d 274
• Parties: CHAS. H. WUNNICKE, Plaintiff and Respondent, v. LEONARD LEITH, Defendant, and DONALD LEITH, Defendant and Appellant
• Court: Wyoming Supreme Court

157 P.2d 274

61 Wyo. 191

CHAS. H. WUNNICKE, Plaintiff and Respondent, v. LEONARD LEITH, Defendant, and DONALD LEITH, Defendant and Appellant

No. 2294

Supreme Court of Wyoming

March 27, 1945

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action on a note by Charles H. Wunnicke against Leonard Leith and Donald Leith, where Donald Leith filed a petition and motion to have default judgment vacated. From an adverse order. Donald Leith appeals.

Reversed and remanded with directions.

Reversed.

For the plaintiff and respondent the cause was submitted on the brief and oral argument of Ray E. Lee, of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Attorney's fees are matters of judicial determination, and when the Clerk adjudicated this case, he was performing a judicial function, and consequently the judgment was void. Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228, 148 P. 374; Freeman on Judgment, Sec. 533; 1 Black on Judg., Sec 88; 6 C. J. 758; 26 Wyo. 192, Graves v. Burch.

There are in general three jurisdictional elements in every valid judgment, namely, jurisdiction of subject matter jurisdiction of person, and power or authority to render the particular judgment.

In the absence of any of these elements, the judgment may be vacated at any time. Freeman on Judgments, Sec. 226, at page 444.

For the defendant and appellant the cause was submitted on the brief of Charles E. Lane, and oral argument by Mr. Lane and A. D Walton, both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

The appellants are not in a position to complain as to the service. Adams v. Hopkins, 77 P. 712; B. F. Salzer Lumber Co. v. Lindenmeier, 131 P. 442; Lane v. Baugh, 163 P. 975; Gotteschalk v. Noyes, 80 N.E. 72; Kopit v. Zilverszmidt, 35 N.Y.S. (2d) 558; In re Roberts Estate, 58 P.2d 495.

The Clerk of the District Court had authority to enter the judgment. Wyoming Revised Statutes, 1931, Section 89-1207; James, et al. v. Lederer-Strauss and Co., 32 Wyo. 377.

Where an excessive amount is included in a judgment, and such excess can be readily determined and eliminated, that course should be pursued. Snow v. Duxstad, 23 Wyo. 82 at 129. This method of modifying a judgment has been pursued in cases where attorney fees were erroneously included. Hillsdale State Bank v. Christensen, 32 Wyo. 68 at 78-79.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is another case involving a question similar to that disposed of in No. 2295, Earl Kimbel, etc., v. J. W. Osborn, etc., et al., recently decided. Here the principal question to be determined is whether the District Court of Laramie County acted properly in declining to set aside and vacate a judgment in the case at bar which had previously been entered by the Clerk alone, the authority for doing this being claimed under Section 89-1207, W. R. S., 1931. Other questions arising in connection with the point suggested in the preceding sentence will also require disposition. It will be necessary, therefore, to set out briefly the material history of this litigation. The parties will usually be referred to as plaintiff and defendants, as designated in the District Court, or by their respective names.

The record before us discloses that on March 2, 1942, the plaintiff, Chas. H. Wunnicke, brought an action in the District Court, aforesaid, against the defendant, Leonard Leith and Donald Leith, upon a promissory note reading:

"No. . . .

Cheyenne, Wyo., Apr. 15, 1932 $ 1294.30 November 15th, 1932 after date for value received, we jointly and severally promise to pay to the order of FRANK A. ROEDEL ESTATE

Twelve Hundred Ninety-Four and 30-100 Dollars At His Place of Business, Cheyenne, Wyoming with interest at 8 per cent per annum from date until paid. In case payment shall not be made at maturity, and if placed with an attorney or any collector for collection, I/we agree to pay a reasonable collection fee and costs, which shall be added to the principal of this note. The makers, endorsers, and guarantors of this note severally waive presentment for payment, demand, protest and notice of protest and non-payment thereof.

Leonard Leith

Donald Leith"

This note carried an endorsement on its back, "11/3/32 142.02 pd.", and on said note plaintiff's petition asserted that there was due the sum of $ 1152.30 and the sum of $ 921.81 interest to the time of filing the pleading. The note was alleged by plaintiff to have been sold and assigned to him by the Stock Growers National Bank of Cheyenne, acting as the executor of the Will of Frank A. Roedel, deceased, said sale being made February 27, 1942, pursuant to an order of the District Court of Laramie County, Wyoming, dated February 11, 1942. Preceding these allegations as to the sale of said note plaintiff's petition stated:

"That on the fifteenth day of April, 1932 at Cheyenne, State of Wyoming, the defendants Leonard Leith and Donald Leith, for a good and valuable consideration, made, executed and delivered to Chas. H. Wunnicke, agent for and on behalf of the Frank A. Roedel Estate their certain promissory note in writing of that date whereby he promised to pay to the said Frank A. Roedel Estate, or order on November 15, 1932 the sum of One Thousand Two Hundred Ninety Four and 30/100 ($ 1294.30) Dollars with interest thereon until paid at the rate of eight percent per annum, together with costs of collection and attorney fees in case payment shall not be made at maturity."

It was also alleged that:

"by the terms of said note defendant undertook to pay all costs of collection including an attorney fee in case the holder was obliged to enforce payment at law. That a reasonable attorney's fee in such a case is Five Hundred and no/100 ($ 500.00) Dollars."

Judgment was asked in the sum of $ 2574.11.

Summons was issued calling on the defendants to answer plaintiff's petition "on or before the 4th day of April, 1942." The summons was served in Laramie County, Wyoming, by a Deputy Sheriff thereof, the officer's return stating that the service was made by delivering a true copy of the summons and petition to "Donald Leith personally and in person. To Leonard Leith by leaving a true copy with Donald Leith, brother of Leonard Leith, a person over the age of 14 years, a member of the family and living at his usual place of residence."

April 9, 1942, the plaintiff requested the Clerk of the Court, aforesaid, to enter judgment in said action for the reason that the action was one upon a promissory note, that defendants have been personally served with summons and are "now in default" for answer. The same day the Clerk entered a judgment in the cause as follows:

"Upon the written request of the plaintiff for entry of judgment against the defendants in the above entitled action, and upon the submission of said request and promissory note upon which plaintiff's action is founded.

IT IS CONSIDERED, ORDERED and ADJUDGED that said plaintiff have and recover of and from said defendant the total sum of Two Thousand Five Hundred and Seventy-four and 11/100 ($ 2574.11) and the costs of this action taxed at $ 9.05, together with interest on said sums at legal rate from the date hereof until paid.

Dated April 9, 1942.

W. A. JAMES

Clerk of the District Court in and for Laramie County, Wyoming."

On the 23rd of June, 1942, plaintiff sued out an execution upon this judgment against said defendants for the sum of $ 2674.11 and $ 9.05 costs. The return of the Sheriff on this process shows that he levied same upon certain described real property, approximately 640 acres in amount, in said Laramie County "belonging to defendants," had it appraised, advertised for sale, and after publication of notice of sale, sold said property to the plaintiff, Wunnicke, on July 31, 1942; that return of this sale was made to the Court aforesaid and said sale was by the Court confirmed on August 1, 1942, and that the Sheriff delivered to said purchaser the certificate of sale as provided by law.

The appraisement thus made was for a total valuation of $ 4474.48 "without considering any encumbrances on said property." The notice of sale was published in the Pine Bluffs Post, a newspaper published in the town of Pine Bluffs in Laramie County. The sale of said property was made to the plaintiff for more than two-thirds of this appraised value upon a bid for $ 3675.00, made up thus:

"The assumption of the first mortgage of Russell B. Davis on said premises in the sum of $ 1200.00; the assumption of the second mortgage in favor of the Federal Land Bank Commissioner in the sum of $ 777.00, and the balance of said bid, to-wit, $ 1698.00, to be applied upon the judgment of said plaintiff, upon which said execution was issued; * * *."

It appears that in due course the Sheriff of Laramie County issued his deed to the property thus sold to the plaintiff as grantee, no redemption from the sale thereof having been undertaken. This deed was by the plaintiff recorded in the office of the County Clerk of said County about May 3, 1943, as is alleged by the defendant, Donald Leith.

July 6, 1943, the defendant, Donald Leith, filed in the District Court of Laramie County, what is designated as a "Petition-Motion" by which he sought to have the judgment above described set aside and vacated on the ground that it was void "because the same was illegally and fraudulently secured by plaintiff." This defendant thereby undertook also to question the propriety of personal service of process upon Leonard Leith, the claim in that respect being that the Sheriff of Laramie County:

"* * * illegally certified that he had gotten personal service upon Leonard Leith by leaving copies of the summons and papers with Donald...