Lieblin v. Breyman Leather Co.

Mb. Justice Bean

delivered the opinion of the court.

In addition to the facts stated above, plaintiff alleges that he is the owner of the real estate attached in the action against John W. Dickens, and that on account of a lack of service of the summons upon Ida M. Dickens, the guardian of the defendant in that action, the Circuit Court which rendered the judgment did not acquire jurisdiction over the person of that defendant so as to authorize the rendition of the judgment, and that the same is absolutely void, and should be canceled and the enforcement upon execution enjoined in order to prevent a cloud upon plaintiff’s title to the land. The manner of service of summons is regulated by statute, and so long as the legislative enactment does not provide for the taking of property without due process of law, its mandate in this respect must be obeyed. Service of summons upon a person judicially determined to be of unsound mind, for whom a guardian has been appointed, is directed by Section 55, L. O. L., to be made in the following manner:

“The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows: * *4. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian and to the defendant personally. ’ ’

1. Before the court is clothed with jurisdiction to render a judgment against John W. Dickens, who, it *26 is alleged in the complaint, has been judicially declared to be of unsound mind, and for whom Ida M. Dickens has been appointed as guardian, summons must be served upon the guardian as well as upon the ward. In no other manner can there be a compliance with our statute. The laws of other states provide differently.

2. It is contended by counsel for defendant that the judgment cannot be attacked by plaintiff in this suit; that this is a collateral attack. The plaintiff asserts that he is the owner of the land, and brings this suit for the express purpose of restraining the enforcement of the judgment for'the reason that his rights will be injuriously affected. If the defendant desires a more detailed statement as to the derivation of plaintiff’s title to the land, he should have proceeded by motion or in some other manner than by demurrer.

3, 4. If the trial court had obtained jurisdiction to render the judgment in question, then in order to assail it, although the same be irregular or voidable, it would be necessary to allege that there was fraud or unfairness in the obtainment thereof. This suit is for the purpose of canceling the questioned judgment, and for an injunction to enjoin the enforcement thereof upon execution. It is a direct attack upon the original judgment: 3 Words and Phrases, 2070; Morrill v. Morrill, 20 Or. 96 ( 25 Pac. 362 , 23 Am. St. Rep. 95 , and note, 11 L. R. A. 155, and note); Walker v. Goldsmith, 14 Or. 125 ( 12 Pac. 537 ); Smith v. Morrill, 12 Colo. App. 233 ( 55 Pac. 824 ).

5. The owner of real property has a right to restrain the sale thereof under a judgment against a third party for the payment of which the owner of such realty is not liable: Wilhelm v. Woodcock, 11 Or. 518 ( 5 Pac. 202 ).

*27 It is suggested by defendant’s counsel that the service of the summons in the original action can be completed. It may be that upon the development of the equities of the case other questions may arise, but until they do, it would be premature to discuss them.

The lower court erred in sustaining the demurrer to the complaint; and the decree is reversed and the cause is remanded, with directions to overrule the demurrer, and for such other proceedings as may be deemed proper, not inconsistent herewith.

Reversed.