Armstrong v. Travis

192 P. 649 | Or. | 1920

McBBIDE, C. J.

1, 2. Some controversy has arisen in the argument as to whether this is a suit to quiet title, and therefore a collateral attack upon the judgment, or a direct attack upon the judgment itself. Without discussing this distinction we have chosen to treat the suit, for the purpose of this case, as a direct attack, as the conclusion we have reached would result from either view of the case. Taking up the case in the order presented, we find no irregularity in the sale that can be taken advantage of in this proceeding. The principal objection seems to be that the sheriff’s return does not.show a levy upon the property. This of itself would hot be sufficient to invalidate the sale' after execution, as it has been frequently held by this court that a confirmation cures irregularities arising between judgment and sale: Matthews v. Eddy, 4 Or. 225; Dolph v. Barney, 5 Or. 191. The failure to levy is not in any event such an omission as will avoid the sale: 2 Freeman on Executions (3 ed.), § 280; Smith v. Dwight, 80 Or. 1, 15 (148 Pac. 477, 156 Pac. 573, Ann. Cas. 1918D, 563); Hamlen v. Hamlen, 33 Miss. 455 (69 Am. Dec. 358). If, therefore, the justice’s docket entries, as filed with the clerk of the Circuit Court, show he had jurisdiction to render the judgment in question, we must affirm this decree.

3. It is well-established law in this state that there are no presumptions in favor of the jurisdiction of courts of special and limited jurisdiction.

“The sound rule óf construction, in respect to the courts of justices of the peace, is, to be liberal in reviewing their proceedings, as far as respects regularity and form, and strict in holding them to the exact limits of jurisdiction prescribed to them by the statute”: Jones & Crawford v. Reed, 1 Johns. Cas. (N. Y.) 20.

4. The examination of the record should not be captious or with a view to seeking far-fetched objections to the jurisdiction, but fair and friendly with due regard to the fact that justices of the peace are not usually chosen from men learned in the law and familiar with the technical requirements that go to make up a perfect judgment, and if, upon such an examination, it appears that the requirements of the statute have been complied with, no matter how inartificially that fact has been made to appear, the judgment should be upheld. Keeping these rules in mind we will now consider the objection to the transcript and judgment in question.

The first objection is that the date of the return of summons is not entered in the docket. As shown above by the copy of the docket the first entry states that a complaint was. filed on I)ecember 9, 1912, and that on December 11th the justice issued a summons. Opposite to this entry in the margin is the notation, “Summons, Feb. 20, ’13.” Then follows a copy of the return of the constable in full, showing, among other things, that the “within” summons came into his hands on December 11, 1912, and that he made a regular service of it on February 20, 1913. In addition, it is further recited that the defendant was duly served with a summons and copy of the complaint on February 20, 1913. >

5, 6. We think it appears with common certainty that the summons that was issued on December 11, 1912, and which came into the hands of the constable December 11, 1912, and the summons which was served February 20, 1913, was one and the same summons, and we will not indulge the presumption that a different summons was served; and, even if another summons had been issued and served, and the defendant had made default, as recited, this fact would not vitiate the judgment if the defendant made default, and from the second recital in the judgment it sufficiently appears that a summons in this case had been served upon the defendant on the twentieth day of February, 1913, and that up to the eighth day of-April, 1913, he had failed to appear or answer, whereupon on that day judgment was rendered against him.

7, 8. Taken as a whole, the entry in regard to service substantially conforms to the form set out at page 1052, Vol. 1, L. O. L., which, while not strictly a part of the. Code, has received the approval of the eminent compiler. While it is true Section 2415 requires that the justice shall enter in his docket the date of the issuing and returning of a summons, it is conceived that this provision is not so drastic as to render void a judgment wherein it appears that a summons issued and was served such a length of time before the judgment, as to justify the entry of a default in case of failure to appear.

This precise question arose in Bacon v. Bassett, 19 Wis. 45, under a statute which required the justice to enter in his docket “the time when process was issued against the defendant, when returnable, and the particular process issued and a statement of the return of the -officer.” In answer to the objection urged here, the court said:

“Neither was the omission of the justice to enter in his docket ‘a statement of the return of the officer,’ as required by subd. 2, sec. 11, ch. 120, E. S., an error for which the judgment can be reversed. The statute in this respect is no doubt directory. It imposes a merely ministerial duty, which, if not performed, does not affect the jurisdiction of the justice, or the regularity of the judgment.”

In Hall v. Tuttle, 6 Hill (N. Y.), 38 (40 Am. Dec. 382), the case arose upon a statute which required a judgment to be entered upon the docket “forthwith, ’ ’ and it was not so entered for three days after it had been pronounced. Justice Cowen held the provision to be merely directory, and in discussing the matter observed:

“Tbe statute is equally peremptory in respect to all tbe entries upon tbe docket. ‘Every justice, etc., shall keep a book, in which he shall enter,’ etc., specifying fifteen particulars, some before and some after judgment. * * Six of them are after judgment, beginning with the entry of the judgment: Suppose any or all to be omitted; or even no book to be kept. The whole is ministerial; and the statute touching the docket and its minutiae merely directory. Its language being imperative does not make it anything more. Almost every directory statute is imperative in its words. One entry is of the execution; another of the return, etc. The statute peremptorily commands these entries. Yet it would be a strange application of it, should we hold the judgment reversible for the omission of either. The entry of the judgment is no more a part of it than the instances put. It is mere evidence of the judgment, as it was at common law; valid, though made at any time, and open to correction according to the truth. To say that a clerical defect or omission in any of the fifteen docketed particulars should be ground of reversal, would be intolerable.”

Much of this is dictum, but it is persuasive, not only from the eminent standing of the learned justice who wrote the opinion, but from the additional fact that he was himself the author of a standard work on the civil jurisdiction of justices of the peace. And while we are not prepared to say that the omission of some entries in the docket required by our statute may render a judgment void, we do say that the omission to make the entries here under consideration more definite do not have that effect.

9. It will be observed that the complaint nowhere alleges that Armstrong was not served with summons, or that he did not make default or did not owe the debt, but merely that the transcript of the docket filed with the clerk did not show these facts. While, as before stated, the docket entries are not drawn with that skill and clearness that would characterize the work of a skillful lawyer, we are of the opinion that — taken as a whole — they are sufficient to show jurisdiction in the Justice’s Court to enter the judgment.

This being the case, the decree of the Circuit Court will be affirmed. Affirmed. Rehearing Denied.

Bean, Johns and Bennett, JJ., concur.