22 P.2d 339 | Or. | 1933
Lead Opinion
Suit by Emma Anderson, formerly Emma Running, against Daniel Guenther and others. Decree for defendants, and plaintiff appeals.
AFFIRMED. REHEARING DENIED. This is a suit, maintained pursuant to the provisions of section 6-1001, Oregon Code 1930, to quiet title to a tract of land of which the plaintiff claims to be the owner. From a decree in favor of the defendants the plaintiff appealed.
The uncontroverted facts are: Some time prior to June 30, 1926, the plaintiff came into ownership of the parcel of real property involved in this proceeding. April 12, 1926, she, together with two other persons, signed a promissory note in the sum of $300 payable to Daniel Guenther, who is one of the defendants in this suit. That note was not paid at its maturity. June 30, 1926, Guenther instituted an action *448 upon it, later obtained judgment, still later secured a writ of execution which was levied upon this parcel of real property and, upon the execution sale, purchased the property. The regularity of the service of the summons in that action is the sole issue in this suit. Plaintiff, who was one of the defendants in that action, was not personally served with the summons. Service was made by publication. We shall now take note of the irregularities upon which she depends to sustain this suit. The complaint in that case named Emma Rummy as one of the defendants, whereas this plaintiff's name is Emma Running (now Emma Anderson). This error in setting forth the plaintiff's name was apparently due to the fact that her signature upon the note was so illegible that it was mistaken for Emma Rummy. After the complaint had been filed Guenther filed an affidavit preliminary to procuring a writ of attachment. It also named Emma Rummy as the party defendant. The affidavit did not aver that the debt for which action was brought was not secured by a mortgage, lien or pledge, and did not allege that the defendant was a nonresident. Upon the same day Guenther filed an undertaking on attachment for the appropriate sum, but in the qualification of the sureties they swore: "I am worth ____ dollars over and above all just debts * * *" but failed to state the amount. Both the bond and the writ of attachment named Emma Rummy as the party defendant. August 16, 1926, the sheriff made his return in which he referred to our present plaintiff thus: "Emma Running, also known as Emma Rummy". This certificate stated that the sheriff had executed the writ by attaching the property now in controversy. The plaintiff claims that the attachment was invalid because "fifteen acres of land just outside the *449 city of Portland was attached for a $300 note and was an illegal and excessive levy". August 16, 1926, the sheriff filed his certificate of attachment. In its caption he entered our present plaintiff's name thus: "Emma Rummy, also known as Emma Running, defendant". It also stated that the property now in controversy had been attached. Plaintiff asserts that this return was defective because (according to her) it "does not show that he attached any property belonging to Emma Running and he made an illegal and excessive levy". The return, however, states that the sheriff attached "property in the name of Emma Running". August 17, 1926, the court made an order from which we quote the following: "It appearing to the court that the defendant named in plaintiff's complaint as `Rummy' true and correct name is `Running' and that said defendant has not as yet been served with summons and complaint. It is therefore ordered that plaintiff may amend his complaint by interlineation, substituting the word Running wherever the name Rummy appears in said complaint". The summons throughout described Emma Running by her true name. November 5, 1928, the sheriff made his return, certifying that he had been unable to find Emma Running. November 14, 1928, an affidavit for publication of summons was filed in which this plaintiff was named in the caption thus: "Emma Rummy, sometimes known as Emma Running, defendant". This affidavit is, in part, in the third person and, although it shows that an extensive search had been made to find Emma Running, no inquiry apparently was made at No. 1188 East 14th Street North, which is the address set opposite the name of Emma Running in the promissory note. The affiant swore that he had been unable to *450 find Emma Running. Thereupon an order was made for the publication of the summons. The summons, with our present plaintiff's name appearing as Emma Running, was published and proof of that fact was filed December 18, 1928. The affidavit showing mailing of the summons somehow became lost and a duplicate was filed December 14, 1930, pursuant to an order of the court granting permission to do so. The affidavit does not state the time when the summons was mailed. December 18, 1928, the default of Emma Running was entered, and upon the same day the court granted judgment in favor of Guenther against Emma Running and her two co-defendants after having entered findings of fact and conclusions of law in conformity with the complaint. March 5, 1929, the writ of execution was issued. April 8, 1929, the writ was levied on the tract of land above mentioned, and subsequently the property was sold. April 25, 1929, the sale was confirmed by order of the circuit court.
November 18, 1930, Emma Running filed in the case which we have been reviewing a motion in which she moved "for an order setting aside the judgment rendered in said proceedings, setting aside the execution issued on said judgment, the confirmation of sale made under said execution and recalling and cancelling the deed issued by the sheriff based upon the sale under said execution, for the reason that the files in said proceedings show that the court had no jurisdiction to render judgment in said case, and for the further reason that the proceedings in said cause show on the face thereof that no service was ever made upon said defendants or any of them". This motion was sustained by an order of the circuit court entered November 28, 1930. Subsequently, upon motion of the plaintiff in *451 that case (Daniel Guenther), the court vacated that order. December 26, 1930, Emma Running filed the following motion: "Comes now the above-named defendants and moves the court for an order setting aside the judgment entered in the above entitled action for the following reasons: (1) there has been no service made on the defendant Emma Running, it appearing from the record thereof that no allegation appears in said affidavit for publication entitling the said service, and for the further reason that it appears from the files of said action that no mailing was ever made to the last post office address of said defendant, as required by law; (2) there has been no proper service made on the defendant S. Johnson; (3) the said judgment was taken by the said plaintiff after the express agreement of said plaintiff that no judgment would be entered in said cause without notice, that no such notice was ever given; (4) the plaintiff herein accepted property in settlement of said note before the entry of said judgment and same was fully and completely paid". Attached to this motion were some affidavits and a pleading bearing the caption of the cause and entitled "Answer". It was under the oath of Emma Running. After denying all of the averments of the complaint, it alleged lack of consideration and averred payment. This motion was never disposed of by the court. January 22, 1932, Emma Running applied to the court for leave to file an amended motion, and on January 23, 1932, she submitted to the court an amended motion to set aside the judgment "for the reason that the court never had jurisdiction of the property nor of the person of Emma Running * * * that said judgment was taken by the plaintiff after the express agreement of said plaintiff that no judgment would be entered in *452 said cause without notice; that no such notice was ever given; that plaintiff herein accepted property in settlement of said note before the entry of said judgment and same was fully and completely paid as shown by the affidavit of Ben Lindeas * * *". No disposition was ever made by the court of this motion.
February 18, 1931, the present suit was instituted. The complaint makes no mention of the proceedings in the above mentioned action, but after the answer had plead the above mentioned judgment and the execution sale thereunder, with title in the defendant Guenther as a result thereof, the validity of Guenther's judgment became the sole issue in the case through the denials and averments of the reply.
It will be observed from the two above mentioned motions that neither states that Emma Running limited her appearance to the sole purpose of contesting the alleged service of the summons. The first motion, in addition to contending "that no service was ever made upon said defendants" contends: "The files in said proceeding show that the court had no jurisdiction to render judgment in said case" which might mean that the court had no jurisdiction over the subject-matter of the controversy. The second motion, after reciting "There has been no service made on the defendant Emma Running" contends that the judgment was taken in violation of an agreement that no judgment would be entered "without notice, and that no such notice was ever given". Next, it submits: "The plaintiff herein accepted property in settlement of said note before the entry of said judgment and same was fully and completely paid".
This court has held many times that a general appearance, even though the service was defective, *453
waives the irregularties of service and confers jurisdiction upon the court as effectively as technically correct personal service. Our decisions have also pointed out that any action upon the part of the defendant before the court, except a contest by him of the service of summons, which recognizes the cause as before the court constitutes a general appearance. The following citations, we believe, fully support the above statements: Herrick v.Wallace,
In Thompson v. Connell,
"We hold, therefore, that the statute having provided the plaintiff with a remedy in the original action, competent for the purpose, and he having therein invoked it, he is now precluded from invoking equitable relief of like character based upon grounds identical with those there employed. The tendency of modern legislation and practice has been to greatly abridge the necessity for resort to equity by amplifying and enlarging the remedies in courts of law for many of the exigencies which formerly called for equitable interposition, and while the jurisdiction may in some instances remain concurrent with that given at law, it cannot ordinarily be invoked when the remedy at law has been employed either with or without avail."
George v. Nowlan,
"It is admitted that the court rendering the decree had jurisdiction of the subject-matter and the parties, and it is a well-settled rule that a court of equity will not enjoin such a decree for errors or irregularities; for, as said by the editor of the American State Reports, in an exhaustive note on the subject: `Courts of equity do not exercise a revisory jurisdiction in proceedings to enjoin judgments or other decisions, but interpose only when, from some cause not attributable to the fault of the complainant, he was not able to present his cause of action or of defense to the court or tribunal having jurisdiction of it, and his inability to so present it has resulted in his injury. In every case in which application is made to a court of equity by an independent suit for relief against a judgment or other decision, it is incumbent on the complainant to establish (1) that he has lost a cause of action or of defense or some part thereof; (2) that such loss occurred either because the court in a former proceeding or action was not competent to hear it and to grant relief thereupon, or because he was prevented from presenting it or having it properly considered, either through fraud, accident, mistake or some other sufficient ground for the interposition of equity; and (3) that unless he secures relief in equity he will be without any adequate remedy'." *456
The decision held that the third defendant was not in a position to contest the regularity of the service by publication because the order for the publication of summons constituted a determination that the affidavit and summons were regular. The decree of the circuit court dismissing the suit was, therefore, affirmed. In Miller v. Shute,
"Treating this as a mere irregularity, rendering the decree voidable, no legal foundation is furnished for relief by an independent suit to set it aside, or enjoin its enforcement; for `it is well settled that where a court in which a judgment or decree is rendered has jurisdiction of the subject-matter and of the parties, equity has no jurisdiction to enjoin such judgment or decree for errors or irregularities in the proceedings leading thereto or in the judgment or decree itself, and it is altogether immaterial that the judgment or the decree was unjust or that the error was such as to warrant a new trial. * * *' But, considering the decree as void, for the reasons alleged as contended by *457
plaintiff, the court rendering it has the power to vacate it (Conant's Estate,
Relief was denied. Nicklin v. Hobin,
Reverting now to the facts of the instant case, we find that the plaintiff made a general appearance in the former action; that she filed three motions to vacate the judgment entered against her in that action, one of which was allowed and the other two of which are still pending in the circuit court; and we also find, as clearly we must, that the circuit court's power to relieve the plaintiff from the judgment, if the judgment is erroneous, is as complete in the law action as it is in this equity suit. The law action clearly made the plaintiff's title in the land the subject-matter of attack because it made the plaintiff's interest in that land virtually the defendant in the proceeding. It seems obvious that this suit cannot be maintained. The plaintiff has an adequate remedy at law.
We believe that before concluding this decision we ought to add that the present counsel for the plaintiff is not the one who represented her in the preliminary proceedings.
It follows from the above that the decree of the circuit court is affirmed.
BELT and KELLY, JJ., concur.
RAND, C.J., did not participate in this decision. *459
Addendum
Plaintiff seems to doubt the circuit court's authority to grant her any relief whatever in the law action. Apparently she believes that the circuit court has lost control over the judgment, and hence cannot vacate it. It will be recalled that the judgment was rendered December 18, 1928, and that her motion to vacate it was filed November 18, 1930. The record does not disclose the specific day upon which the plaintiff (the defendant in the law action) claims that she, for the first time, acquired knowledge of the existence of the judgment against her. As stated in our previous decision, her motion was predicated upon the contention that the efforts of the plaintiff in the law action to obtain service of summons by publication were fatally defective. If these contentions are true, the aforementioned judgment is void, and it was the duty of the circuit court to vacate it, even though the term in which it was rendered had expired, and even though more than a year passed after the entry of the judgment and before she filed her motion. Section 2-1507, Oregon Code 1930; Finch v. Pacific Reduction Etc. Co.,
Next, the plaintiff argues that section 6-1001, Oregon Code 1930, which authorizes the maintenance of a suit to remove a cloud from a title, permits the owner of real property to maintain such a suit even though he has a plain, speedy and adequate remedy at law. In support of this contention, she states that this section of our laws was enacted at the same time that section 6-101, Oregon Code 1930, was enacted, which makes provision that the rights therein mentioned may be enforced by a suit in equity if the party has no plain, adequate and complete remedy at law. She argues that section 6-1001 is specific, that section 6-101 is general, and that, therefore, the former is not controlled by the latter. Section 6-101 was section 376, General Laws of Oregon, 1862. Section 6-1001 came into our laws as 1899 Session Laws, page 277. The essence of plaintiff's argument was before this court in State of Oregon v. Warner Valley StockCo.,
Plaintiff next contends that in the law action mentioned in our previous decision the court lacks authority to set aside the sheriff's deed to the defendant, and that, therefore, the maintenance of this suit is necessary if the plaintiff is to have an adequate remedy. The certificate of sale was issued to the defendant, Daniel Guenther, and, according to the pleadings, the title is now vested in him and Sophia Guenther, his wife. The answer does not allege that Sophia Guenther parted with any value for her interest, nor does it aver that whatever interest she may have was acquired without knowledge of all attendant circumstances. As we have seen, the circuit court possesses authority in the law action to vacate the present judgment, if it should be satisfied that a judgment for the plaintiff is not warranted, and enter one for the defendant. If such is done, the foundation for the sheriff's deed has been removed, and, as is held in the numerous decisions cited in 29 A.L.R. 1078, the defendant's title to the property in controversy is ended. We quote the following from the decision of the Circuit Court of Appeals for the ninth circuit in Hays v. Sound Timber Co., 261 Fed. 571 (29 A.L.R. 1067):
"* * * One of the appellee's affirmative defenses was the vacation of the judgment and sales in the state superior court under which the appellant *462
claims title. It is the general rule, and it has been so held in the state of Washington, that, where the execution plaintiff is purchaser, the vacation or reversal of the judgment operates to vacate the sale as between the parties. 17 Cyc. 1310; Benney v. Clein,
The following excerpt taken from Webb v. Webb's Guardian,
"* * * The hard and inflexible rule, above stated, has been changed, to the extent, that, if the purchaser at a judicial sale, either under execution or a decree, is a party to the record, who procured the erroneous judgment, or his attorney, or assignee before the sale, when it is reversed upon appeal, if the property sold is in the hands of such party, he may be required to make restitution of the property, and if not, he can be made liable for its value or at least all, which he received from the sale. Cavanaugh v. Wilson,
It is true that the Kentucky court spoke of a reversed judgment, but we believe that the same results follow a vacated executed judgment as a reversed one. Benney v. Clein,
It will be observed that the orders vacating the judgment, the sale, and the confirmation of sale will appear in the same record as the one out of which the sheriff's deed emanated. This court, in harmony with the general rule (Pomeroy's Equity Jurisprudence (2d Ed.), § 2155; Story's Equity Jurisprudence (14th Ed.), § 948), has declared that equity will not grant relief in a suit of this character where the invalidity of the questioned instrument appears upon its face, or is conclusively established by matters of record; in other words, our decisions have regarded as a cloud upon title a document which is apparently valid, but in fact, without foundation and is, therefore, capable of injuring the marketability of the title.Crim v. Thompson,
"The judgment vacating the sale is not a part of the record of the judgment under which the lands were sold. It is a new, distinct, independent judgment rendered in a new proceeding, having different parties, a different subject-matter, operating differently, and the subject of an appeal which would not open an inquiry into the judgment under which the lands were sold."
If an instrument, in the possession of another, injures a title, depreciates the market value of the property, *464
and is of such mischievous character that a prospective purchaser would hesitate to purchase, we believe that business sense compels the conclusion that the instrument is a cloud upon the title and that equity ought to decree relief. Such a view was, in fact, expressed in Mount v. McAuley,
The power of the circuit court, when it vacates an erroneous judgment, is not limited to orders which merely expunge records. The power to vacate an erroneous judgment is only a part of the power to restore the parties litigant to the same condition in which they were prior to the abuse of the process of the law. To restore that condition is primarily the duty of the court which entered the erroneous judgment and issued the writ of execution. Justice is not administered piecemeal, and in this day, when the distinction between the law and equity powers of our courts has been virtually eliminated, there can exist but slight occasion for passing a litigant from court to court before he has secured complete relief. We are of the opinion that if the circuit court which granted judgment in the law action should conclude that the judgment was erroneous, it can so administer relief under a writ of restitution as to make it clear that the sheriff's deed is void. Coker Bellamy v. Richey,
It follows from the above that we remain satisfied with our previous decision, and hence the petition for a rehearing is denied.
BELT and KELLY, JJ., concur.
RAND, C.J., did not participate. *466
