Ollis v. Orr

Pleadings — Judgment.—A complaint which, attacks a judgment is void solely upon the ground that the affidavit on which order for publication of summons was made “was insufficient” does not state facts sufficient to constitute a cause of action to have such judgment adjudged void, and such complaint, when unaided by affirmative allegation in the answer will not support a judgment for the plaintiff. Same. — On appeal, a judgment in favor of the defendant will not be disturbed where the complaint fails to state a cause of action. Publication of Summons. — Allegations that a “judgment is void,” and that an affidavit for publication of summons is “insufficient,” are statements not of fact, but of legal conclusions. Pbesumptions as to Regularity. — Every presumption and intendment of law is in favor of the regularity of a judgment of a court of general jurisdiction, and to overcome such presumption, in a suit brought to have such judgment declared void, facts must be alleged and proven showing wherein the court failed to obtain jurisdiction to render the judgment which is so attacked. (Syllabus by the court.)

APPEAL from District Court, Bingham County. The record is defective in the following particulars, many of which are substantial and fatal, viz.: The summons does not specify with any degree of certainty what action would be taken if the defendant defaulted. (Bev. Stats., sec. 4140, sub. 4; Dyas v. Keaton, 3 Mont. 498; Ward v. Ward, 59 Cal. 139; Atchison etc. R. Go. v. Nicholls, 8 Colo. 189, 6 Pac. 512.) The affidavit f-or publication of summons fails to- state that any complaint had been filed or any summons thereon issued, or the purpose of the suit, if any, or what effort had been made or diligence used to obtain personal service, or where defendant then resided, or what return, if any, was made on the summons, or that any cause of action existed, or what it was, or that the defendant was a necessary or proper party, or the facts showing that personal service could not be made. (Bev. Stats., sec. 4145; 3 Estee’s Pleadings, 4th ed., sees. 3935, 3936, and eases cited; Forbes v. Hyde, 31 Cal. 342.) The record does not show the entry of default, by the clerk or otherwise than by way of recital in the judgment, and if entered at all it may have been premature. (Bev. Stats., sec. 4456; Palmer v. McMaster, 8 Mont. 186, 19 Pac. 585.) The default when taken is an essential part of the judgment-roll. (Bev. Stats., sec. 4456; Palmer v. McMaster, 8 Mont. 186, 19 Pac. 585; Strode v. Strode, ante, p. 67, 52 Pae. 161.) This is not a collateral, but a direct, attack upon the judgment in Orr & Orr v. Ollis (12 Am. & Eng. Ency. of Law, 147, note j), and therefore authorities upon collateral attacks are not in point. (McKinley v. Tuttle, 42 Cal. 671; Vaule v. Miller, 69 Minn. 440, 72 N. W. 452.) Courts of equity have always entertained actions for this purpose where the judgment was obtained by fraud, accident, mistake, or without service of process upon the defendant: (3 Estee’s Pleadings, 4th ed., sec. 4828b, and cases cited; People v. Thomas, 101 Cal. 571, 36 Pac. 10; Eurlburt v. Thomas, 55 Conn. 181, 3 Am. St. llep. 43.) Records import absolute verity only when it appears that the defendant was within the territorial jurisdiction of the court. (Galpin v. Page, 18 Wall. 350; S. C., 3 3 Saw. 93, Fed. Cas. No. 5206; Palmer v. McMaster, 8 Mont. 186, 19 Pac. 585; Freeman on Judgments, 3d ed., sec. 125; Ciarle v. Thompson, 47 Ill. 25, 95 Am. Dec. 457; Belcher v. Chamber, 53 Cal. 635.) The rule upon the question of presumption and impeachment in these matters, which is supported by the great weight of authority upon which the appellants rely, and to which we respectfully invite the attention of this court, is laid down in Pennoyer v. Neff, 95 D. S. 714; 3 Estee’s Pleadings, 4th ed., sees. 4754, 4828, notes a, b, d, e, and citations; Goodale v. Coffee, 24 Or. 346, 33 Pac. 990; "Willamette B. E. Co. v. Hendrix, 28 Or. 485, 52 Am. St. Rep. 800, 42 Pac. 514; Alderson v. Marshall, 7 Mont. 288, 16 Pae. 576; Palmer v. McMaster, 8 Mont. 186, 19 Pac. 585;. Calpin v. Page, 8 Wall. 350; S. C., 3 Saw. 93, Fed. Cas. No. 5206; Strode ¶. Strode, ante, p. 67, 52 Pae. 161; 'Neff v. Pennoyer, 3 Saw. 274, Fed. Cas. No. 10,083.) A judgment is void upon its face when the fact is made apparent by an inspection of the judgment-roll. (Jacks v. Baldez, 97 Cal. 91, 31 Pac. 899; People v. Harrison, 84 Cal. 607, 24 Pae. 311; People v. Thomas, 101 Cal. 571, 36 Pae. 10.) Hence, if the entry of judgment be regular, and other portions of the judgment-roll affirmatively show lack of jurisdiction, the judgment would be void upon its face, and would not even cast a cloud upon the title of the property sold under it. In other words, it became necessary for the plaintiffs in stating a cause of action, to quiet title, to allege the regularity of the judgment, and hence the judgment-roll upon its face, and such is, in substance, the allegation in the complaint; and such was the intention of the pleader, for, upon being required to make the complaint more definite and point out the defect upon which reliance was to be placed, the pleader went outside of the judgment-roll, and attacked only the affidavit for the order of publication. That the affidavit for order of publication is not a part of the judgment-roll must be admitted. (See Rev. Stats., see, 4456; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, and note: Sharp v. Daugney, 33 Cal. 505; People v. Thomas, 101 Cal. 571, 36 Pac. 10.) An affidavit for publication which states jurisdictional facts only by general inference, renders the judgment not void, but voidable. (Bay-mond v. Nix, 5 Okla. 656, 49 Pac. 1110; Long v. Fife, 45 Kan. 271, 23 Am. St. Rep. 724, 25 Pac. 594; Shippen v. Kimball, 47 Kan. 173, 27 Pac. 813; Washburn v. Buchannan, 52 Kan. 417, 34 Pac. 1049; DcGorvet v. Dolan, 7 Wash. 365, 35 Pac. 72, 1072.) And note that the affidavits in these cases are even loss satisfactory than the one in question. (See, also, Miller r. Brinkerhoff, 4 Denio, 118, 47 Am. Dec. 242; Staples v. Fairchild, 3 N. T. 41, 46.) Gregory v. Ford, 14 Cal. 139, is a case involving a record similar to this. The court says: “A defendant having no defense to an action cannot go into equity and enjoin a judgment by default on the ground that the sheriff’s return of service on him is false, and that, in fact, he had no notice of the proceeding.” (See same case with note in 73 Am. Dec. 639.) The same doctrine Is announced by the same court in Harnish v. Bramer, 71 Cal. 155, 11 Pac. 888, and from innumerable authorities we cite the following: Har-man v. Moore, 112 Ind. 221, 13 N. E. 718; Woods ¶. Brown, 93 Ind. 164, 47 Am. Rep. 369; Gifford v. Morrison, 37 Ohio St. 502, 41 Am. Rep. 537; Piggott v. Addicks, 3 G. Greene, 427, 56 Am. Dec. 547; Poor v. Tuston, 53 Kan. 86, 35 Pac. 792; Janes v. Howell, 37 Neb. 320, 40 Am. St. Rep. 494, 55 N. W. 965; White v. Grow, 110 IT. S. 183, 4 Sup. Ct. Rep. 71; Massachusetts Ben. Assn. v. Lohmiller, 74 Fed. S3; Pilger v. Tor-rence, 42 Neb. 903, 61 N. W. 99; John V. Parwell Co. v. Hilbert, 91 Wis. 437, 65 N. W. 172; Crocker v. Allen, 34 S. C. 452, 27 Am. St. Rep. 831, 13 S. E. 650.