111 Ky. 299 | Ky. Ct. App. | 1901
Lead Opinion
Opinion of the court by
Affirming.
On September á, 1894, an apportionment warrant for $140.52 was issued by the city of Louisville in favor of John R. Gleason for the original construction of a portion of Locust street, in front of a 'lot then owned by Matilda Scfonell, now Matilda Meisger. The warrant was. on the same day assigned by Gleason to Peter Bitzer.. Mary M. Mercke had at the time a mortgage lieni on the property to secure a note of $300. On October 10, 1896,. she filed her petition in the Jefferson circuit court for the foreclosure of the mortgage, and made Gleason a party defendant, calling upon him to set up> his claim, if any he had, or be forever barred. Gleason failed to answer the petition, and in January, 1897, a judgment was entered in the action enforcing the mortgage of Mrs. Mercke, and barring Gleason of any. lien on the property. The property was sold under the judgment on February 15, 1897,. and was purchased by Mrs. Mercke at a little less than the amount of her debt. The sale was confirmed, and deed ordered to be made to her. Thereafter, on June 21, 1897, she sold and conveyed the property to John J. Davis. On August 24, 1899, and before Davis had paid for the property, Bitzer and Gleason brought this suit asking an enforcement of the lien, and for a sale of .the lot therefor. Mrs. Mercke and Davis pleaded in bar the judgment rendered in the first case, which1 had never been appealed from, vacated, or modified. The appellants, by
The first question in the case is whether Gleason, if he had not assigned the claim to Bitzer, could himself have maintained this action, notwithstanding the judgment pleaded in bar. The record of’ tha.t case is not copied in the transcript. It is referred to as a part of the answer, and was evidently before the chancellor1 when he decided the case, as -shown by his opinion, which is as follows: “Gleason was unquestionably the record holder of the street warrant, and the evidence shows’ that Mrs. Mercke, the mortgagee, had no notice1 whatever that Bitzer had any interest in the warrant. She proceeded properly against Gleason. He was- served with process in case 12,213, read in -this case as evidence, and the judgment therein passed upon his rights. That judgment is still in force, and being voidable at most, and certainly not void, it must be heeded until it is reversed or set aside by the tribunal having jurisdiction to do so. Nor can
It has been often held that where a record read in evidence is not copied in the transcript it will be presumed, on appeal, to support the finding of the trial court. The chancellor’s opinion shows that this record was read in evidence before bim. It also shows that he, having the record before Mm, came to the conclusion that the petition did not recognize Gleason’s claim, and that the judgment followed the prayer of the petition. This court, in the absence of the record, can not presume that the chancellor erred. Though the allegations of appellee’s answer were insufficient, still there was no demurrer to the answer. The case was submitted upon the pleadings and proof, and the defect in the answer was cured by the evidence and judgment. The chancellor’s judgment does not rest upon the allegations of the answer, but upon the 'contents of the record itself. On the facts found by the chancellor, the question presented is whether a judg
Mrs. Mercke wished to foreclose her mortgage. The record showed a lien in favor of Gleason on the property for an apportionment warrant of $140.52. In order to foreclose her mortgage, she was required, under section 692 of the Civil Code, to make all other lienholders parties defendant to the action. The purpose of this section is to sell the entire title to the property, so that purchasers will be encouraged to bid at such sales, and sacrifice of the property avoided. Mrs. Mercke, therefore, made Gleason a defendant to her petition, and prayed that he be barred of all claim if he failed to set up his lien. He was duly served, and, failing to plead, judgment was entered in bar of his lien, and for a sale of the property ' under the mortgage. This judgment is now attacked collaterally, and the only question is, is it void? In Yanfieet, Coll. Attack, section 17, the rule is thus stated: “The doctrine of collateral attack denies any validity whatever to the former adjudication, while that of res judicata admits its entire validity, and simply denies the scope ■claimed for it. There is littl-e similarity between the two doctrines. Collateral attack involves the jurisdiction •of the court, and denies its power to act at all, while res judicata merely involves the question concerning what was actually contested and decided in the trial. The doctrine of collateral attack has nothing to do with the issue or the matters contested on the trial. A judgment on default, without any issue joined or contest made, is just as invulnerable against a collateral attack as one rendered on issue joined after a contest. . . . Right here, on the question of issues, is wlmre many decisions have gone
Section 763 of the Civil Code of Practice provides that neither a void' judgment nor one that may be corrected by the court rendering it on motion may be .reversed by this court until a motion to set it aside has been made in the inferior court. Under this section, the question has often .arisen whether an appeal could' be taken from a judgment before a motion to correct it was made in the lower court, and in a number of these cases, precisely the question made in this case arose. Thus, in Bunger v. Hart, 3 Kentucky Law Rep., 518, a judgment had been
The authorities relied on for appellants do not conflict with the foregoing. As has been said by the United States supreme court, if in an action for money the court should sentence the defendant to imprisonment in t’he penitentiary, or in an action for. the possession of real estate, the court should adjudge the probate of a. will, the judgment would undoubtedly be void. Windsor v. McVeigh, 93 U. S., 274 (23 L. Ed.. 914). But the line must be drawn ■somewhere between error of the court and want of jurisdiction. All the cases concede this, and there seems to be no real authority for the proposition that a judgment may be attacked collaterally for a defect in the pleadings. The case of Strobe v. Downer, 13 Wis., 10, 80 Am. Dec., 709, involved a common-law foreclosure, which is entirely
It remains to determine whether it is also conclusive upon his assignee Bitzer. Under section 19 of the Code of Practice, “in the case of *an assignment of a thing in action the' action'by the assignee is without prejudice to any discount, set-off or defense now allowed,” and by section 474 of the Kentucky Statutes, bonds, bills, or notes are assignable so as to vest the right of action in the assignee, but not to impair the right to any defense, discount, or offset that the defendant had before notice of the assignment. WThile this section only applies to bonds, bills, or notes for money or property, the rule it announces is followed, under section 19 of the Code- of Practice, in the case of an assignment of a thing in action, where the assignment is not authorized by -statute'1, and the action by the assignee is without prejudice to any defense acquired by the defendant without notice of the assign
Dissenting Opinion
dissenting opinion:
That we may clearly understand the legal question involved upon this appeal, it is ' necessary that a brief summary of the facts out of which the litigation grew should' be recited in chronological order. On the 4th of September, 1894, an apportionment warrant for $140.52 was issued by the city of Louisville in favor of John R. Gleason for the' original construction of that portion of Loo'ust street in front of a lot 50 by 165 feet, on the corner of Locust and Charlton streets, owned at that time by Matilda Sehnell, who became by marriage Matilda Meisger. This warrant was on the same, day transferred and assigned by Gleason to Peter Bitzer. On October 10, 1896, Mary M. Mercke filed her petition in the Jefferson circuit court against J. C. and Matilda Meisger (nee Sehnell), for the enforcement of a mortgage lien to secure the payment of a note for $300, held by her upon the same lot. She made J. R. Gleason a party defendant, having discovered from the records of the board of public worksi the existence of apportionment warrants previously issued to him against the same property: 'The petition set forth the warrant standing in Gleason’s name, giving the date, the amount thereof, and the name of the party against whom issued, and called upon Gleason to set up his claim thereunder, as provided by section 692 of the Civil 'Code of Practice. In her petition she stated that the mortgage lien held by her was superior to a,11 other liens against the property, except that of the apportionment warrant held! by Gleason. John R. Gleason never answered in that proceeding, and a judgment was entered, in Jan-, uary, 1897, enforcing the mortgage lien of Mrs. Mercke, and barring Gleason of any lien or claim upon the prop
In Black, Jud'g. section 181, the author, in discussing the effect of a judgment not in issue, says that: “Undoubtedly, a judgment so pronounced would be irregular and erroneous, as being contrary to the course -of law and the usual practice of the courts, and would therefore be liable to reversal. But whether it should be regarded as entirely void1 — a mere nullity — is a question involved in more difficulty. That no such result could properly follow is
The case of Strobe v. Downer, 13 Wis., 10 (80 Am. Dec., 709), is a case much like that at bar. The syllabus states correctly what is decided, and is as follows: “The first mortgagee, who is made a defendant to a suit for the foreclosure of a second mortgage without any allegation, in the complaint contesting his title, has a right to assume that the proceding is to be conducted upon the theory that his lien is paramount to that of. the plaintiff. A second mortgagee brought an action of foreclosure, making the first mortgagee a defendant under the general
• And the case of Munday v. Vail, 34 N. J. Law, 418, it was 'held: “A decree on any question which is entirely outside of the issues raised in the record is invalid, and .will be treated as a nullity, even in a collateral proceeding.” The court, spe'aking through Chief Justice Beasly; says: “ 'Jurisdiction’ may be defined to be the right to adjudge concerning t'he subject-matter in a given case-. To constitute this, three- things are essential: First, the court must have -cognizance >of the class of cases to which the, one to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue. That -a court can not go out ‘of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by -a multitude of authorities. A defect in a judgment arising from the fact that the matter decided was not embraced within the -issue has not, it would seem, received much judicial consideration, and yet I can not doubt that, upon -general
In Reynolds v. Stockton, 43 N. J. Eq., 211 (10 Atl., 385), a judgment of a court of New York was pleaded in bar of an action brought in a court of New Jersey. The New Jersey court inquired into the jurisdiction of the New York court to determine the question, and held that it had not jurisdiction, for this reason: “The1 decree in New York having adjudicated a matter not presented by the pleadings, nor within the issue, can have no higher effect than a judgment rendered ’ in our own courts under like condition, and must be treated as a nullity.” This case was carried to the supreme court of the United States upon a writ of error, where it was affirmed in an opinion delivered by Justice Brewer, reported in 140 U. S., 254 (11 Sup. Ct., 773. ,35 L. Ed., 464). He said, in giving the reasons for affirming the judgment, that, when
We could indefinitely multiply authorities from courts and text writers sustaining this view, but content ourselves with the above citations. •
Section 692 of the Civil Code of Practice provides that “the plaintiff in an action for enforcing a lien on property shall state in his petition the liens held thereon by others, mking them defendants; and may ask for and •obtain a judgment for the sale of the property to satisfy all of said liens which are shown to exist and though the defendants failed to assert their claim. Snob defendants shall not however be allowed to withdraw or receive any of the proceeds of such sale until they have shown their right thereto by answer and cross petition.” Under this provision of the Civil Code of Practice, it was the duty of Mrs-. Mercke, when she brought 'her suit to enforce her mortgage lien upon the lot in question, to state in her petition the liens held thereon by others, and to make them defendants. If there was no controversy between her and the other lienholders as to the validity and priority of the liens asserted to exist, she was entitled to a judgment for the sale of the property to satisfy all of the Hens, even though the other lien-holders failed to assert their claims; and when she dis
There is no question of a bona fide and innocent purchaser for value involved in this case. Mrs. Mercke became the purchaser of the lot under the judgment rendered in her favor, and she occupied no worse position after the sale than before. If appellant’s claim against the lot was superior to hers before the sale it continued to be good after; and, in my opinion, the judgment, in so far as it assumed to bar the claim of appellant Gleason, was altogether outside the issues made by the pleadings, unauthorized by the provision of the Code, and an absolute nullity.