Cody v. Cody

Winslow, J.

This is an action in equity brought in,the circuit court for Jefferson county to set aside a deed and mortgage of certain real estate which had been made in ■obedience to an order of the county court of Dodge county. It is not attempted in this action to set aside or vacate the *450 order itself, but to annul the acts done in pursuance of the order, while leaving the order itself unreversed and unre-voked by any direct proceeding. It is, within all the authorities, «a collateral attack upon the order. The principles which govern a collateral attack.upon an order or judgment of a court are well stated by Mr. Yan Fleet in his work upon Collateral Attack at section 16, as follows: “In order to make a judgment void collaterally, either (1) a legal organization of the tribunal, or (2) jurisdiction over the subject matter, or (3) jurisdiction over the person, must be wanting, or (4) one or more of these matters must have been lost after it once existed.” We understand it to be conceded by the counsel for the plaintiffs that this action is in fact a collateral attack upon the order of the Dodge county court, and upon that basis he argues, with his usual force and learning, that there was a lack of jurisdiction, both of the person and of. the subject matter, in that court when the order in question was made.

The Dodge county court was not a mere probate court when this order was made. It had been endowed with limited civil jurisdiction, in addition to the ordinary probate powers. By sec. 2465, E. S. 1878, as amended by sec. 1, ch. 31, Laws of 1879, it was given powers and jurisdiction in all civil actions and proceedings in law and equity (with certain exceptions not necessary to be stated) concurrent with and equal to the jurisdiction of the circuit court, when the amount in controversy does not exceed $25,000. The general provisions of law relating to circuit courts, and to civil actions and proceedings therein, are applicable to said county court. E. S. 1878, .sec. 2466. Under these provisions there can be no doubt that within the prescribed limits the county court of Dodge county possesses concurrent and equal jurisdiction and powers over civil actions and proceedings, with the circuit court. Platto v. Deuster, 22 Wis. 482 ; Geise v. Greene, 49 Wis. 334 ; Am. L. & T. Co. v. Bond, 91 Wis. 204 .

*451 By virtue of the judgment in the divorce action, the title-to the real estate in controversy bad been, vested in Mr. Sanborn, charged with a trust duty, or a power in trust (it is immaterial which), to be executed as directed by the county court of Dodge county. Now, had the judgment directed that the trust or power should be executed under the command of the circuit court for Dodge county, we think that no contention would be raised as to the jurisdiction of that court to act in the matter upon proper application. The general jurisdiction of the circuit courts over the execution of trusts and powers of all classes, is undeniable, and is not limited by county lines, and the provision that this trust or power should be performed under the direction of the circuit court of a certain county would not confer jurisdiction upon that cour-t, but simply operate as a command to the guardian ad litem to invoke the already existing power and jurisdiction of the designated court to direct his action. Such being the law with reference to the circuit court, no reason is perceived why the same power and jurisdiction did not exist in the county court of Dodge-county, there being no claim that the property in question exceeded in value the legal limit of jurisdiction of that court. These considerations seem to settle the question as to the jurisdiction of the subject matter.

As to the jurisdiction of the person, we can perceive no serious question. All the persons who had any legal interest in the matter were before the court when the order was made. The guardian ad litem was there, moving the court' to act as it was his clear duty to do under the divorce judgment. The deceased, Dr. Cody, who owned the beneficial interest in the property and for whose benefit alone the entire proceeding was devised, was duly served upon, besides being in fact represented by his guardian ad, litem in the divorce action, who was acting in his interest. The divorced wife had no interest in, or lien upon, the property. *452 She’had been awarded '$4,000, as. permanent alimony and in lieu of dower, in the divorce action. The children had no legal-interest, as probable heirs at law, prior to the death of their'father. So it is not perceived that any other person or persons had any legal right to notice of the proceedings. The principle laid down in the cases of Mohr v. Porter, 51 Wis. 487 , and Mohr v. Manierre, 101 U. S. 417 , is applicable.

As to the numerous allegations charging fraud and imposition on the part of William G. Cody, both upon his father, upon'Mr. Sanborn, and upon the court, it is very plain that none of them can affect the question of jurisdiction. A judgment ' may : be procured by the grossest fraud, and yet be within the undoubted jurisdiction of the court which ren■ders'it. Upon collateral attack, the question is not whether the judgment was obtained by fraud, but whether it was rendered without jurisdiction.

■But it is claimed that the order of the Dodge county c'ourt'-was''void'because not made at the county seat of the ■county, but at the chambers of the judge in another city. (R.-S.: 1878, Sec. 2440.) The complaint charges, in-several places,’that the proceeding was before the “county court of Dodge county,” and that' the order-was made by the “ county c'ourt.” ‘Having charged that the order'was made by the ■court, it is perhaps doubtful whether this question is open, because, if the contention is well founded, then the act was not the act ’of the court at all. But the statute (R. S. 1878, sec. 2471) expressly provides that the county judge may adjourn any term of the court to his office, or to some other suitable, place, when the court cannot be conveniently held at the' court house on account of the sitting of the circuit court,'“ or • for any other cause.” This certainly gives the county judge ample discretionary power to hold court at his ■office, as -was done here. lie would seem to be the sole judge of the sufficiency of the cause for doing so.

Our1 conclusion is that upon this complaint the order of *453 the county court cannot be collaterally attacked, and,: consequently, that the demurrer should have been sustained:

It is due to Mr. A. L. Sanborn, who is a highly-respected, member of the Dane county bar, to state that the complaint does not in any way charge him with any improper. action in the entire proceeding.

By the Court.— Order reversed, and action remanded-with directions to sustain" the demurrer.