234 P. 1101 | Wyo. | 1926
Lead Opinion
This is an action to quiet title brought on April 29, 1922, by John W. Cook, as plaintiff, against Ray Boulter and James H. Hawkins, as defendants.
The petition alleges that plaintiff is the owner and in possession of the SE 1/4 of the SW 1/4 of Section 27; NW 1/4 of Section 34; N 1/2 of the NE 1/4 and NE 1/4 of NW 1/4 of Section 33, in Township 31 North of Range 106, West of the 6th P.M., Fremont county, Wyoming, containing 320 acres of land; that the defendants have or claim to have some lien or title to said land adverse to plaintiff; that Ray Boulter advertised to foreclose a certain mortgage against said land but that said pretended mortgage is void. Plaintiff prays that said foreclosure be restrained and his title be quieted. Judgment was entered in favor of the plaintiff, from which said Ray Boulter has brought proceedings in error to this court. The plaintiff, having died during the pendency of the case in this court, Anna L. Cook, the executrix of his last will and testament, has been substituted in his stead and she will hereafter be referred to as defendant in error.
The facts in this case are substantially as follows: Said land was patented on October 9, 1906, to Joseph M. Boulter. On June 10, 1912, it was duly sold and conveyed to said Ray Boulter. On July 1, 1912, it was bought in by John W. Cook for $47.21, at a sale for delinquent taxes. On August 20, 1915, John W. Cook caused notice to be served on said Ray Boulter, the occupant of said premises, that on December 24, 1915, he would apply to the treasurer of Fremont county, to issue a tax deed to him for said premises. Thereupon, and on December 16, 1915, the Rock Springs National Bank and Ray Boulter, as plaintiffs, *465
through T.S. Taliaferro, Jr., their attorney, brought an action against the treasurer of Fremont county and John W. Cook, as defendants, to restrain the issuance of such tax deed, alleging among other things that said Ray Boulter had often tried to redeem said land from the tax sale aforesaid, and had made a tender of the amount due. A temporary injunction was issued in said cause on December 20, 1915. On January 31st, 1916, a general demurrer was filed on behalf of said defendants, on the ground that the petition did not state facts sufficient to constitute a cause of action. Burns v. State,
"Now on this 23rd day of July, 1919, this cause came on regularly to be heard by the court upon the petition of the plaintiff and the demurrer of the defendant herein; and the court having considered said pleadings and being now sufficiently advised in the premises, doth overrule the said demurrer, and the defendants and each of them failing to plead further in this cause and being now in default for an answer or other plea herein, and said default having been regularly taken and entered, and in consideration of the petition and of the affidavit verifying the same, and of the proof and facts upon which the temporary restraining order was issued herein; and the court being now sufficiently advised in the premises, doth make the said temporary restraining order heretofore issued in this cause permanent."
Said judgment was filed in the district court of Fremont county, on August 11, 1919. Nothing further was done in said case until April 7, 1920. On that date John W. Cook filed a motion, supported by affidavits, to open, vacate and set aside said judgment of July 23, 1919, upon the ground that *466 the demurrer of defendants was overruled and decree rendered and entered against defendants without notice to him or his counsel and without giving him an opportunity to answer the said petition, although he had a good, lawful and equitable defense to said petition. Notice of said motion was duly served upon the Rock Springs National Bank and upon T.S. Taliaferro, Jr., and on May 22, 1920, said bank filed a disclaimer. No notice of said motion was served upon Ray Boulter personally, and he did not appear. John W. Cook and the treasurer of Fremont county duly filed an answer in said cause. On June 2, 1920, the court entered an order vacating and setting the decree of July 23, 1919 aside and permitting the defendants in said cause to appear therein and answer or defend, and granting the plaintiffs, namely said bank and Ray Boulter, fifteen days in which to file a reply. On June 18, 1920, no reply having been filed, the court entered a decree, finding that the premises above described were duly and regularly sold for taxes on July 1, 1912, duly and regularly levied thereon for the year 1911; that John W. Cook became the purchaser at said sale; that on August 20, 1915, said purchaser caused notice to be served upon said Ray Boulter, that he would apply for a tax deed for said premises on December 24, 1915, and further caused notice of said application to be published in the Wyoming State Journal, a newspaper printed and published in Fremont county, Wyoming and that said premises have not been redeemed from said tax sale. The temporary restraining order theretofore issued was dissolved, and the county treasurer of Fremont county, Wyoming, was authorized and directed to issue to John W. Cook, a tax deed to said premises. On July 6, 1920, a tax deed was issued accordingly, but is not incorporated in the record.
In the meantime and on October 27, 1919, Ray Boulter and his wife duly conveyed the said premises to James H. Hawkins, one of the defendants in the present action, for a valuable consideration, and on the same day, the latter and his wife executed a mortgage to Ray Boulter to secure *467 the sum of $12,000, the remainder due on the purchase price. It is this mortgage which is sought to be declared invalid in the present action.
It is contended by the attorneys for the plaintiff in error, that the foregoing proceedings and facts were not introduced in evidence, although dictated into the record by W.A. Muir, who acted as attorney for plaintiff in error. The contrary is maintained by the attorney for the defendant in error. Unless these facts and proceedings, as so dictated, are in evidence, no title to the premises in controversy has been shown to be in John W. Cook. We think, however, without stating the reasons therefor in detail, that it was intended to be stipulated by the parties that the proceedings and facts so dictated should be considered in evidence. The court so understood it, found the facts as hereinbefore mentioned, and based the judgment, which was rendered in the present case, entirely upon the judgment of June 18, 1920. The latter judgment is in the record only by reason of the stipulation dictated into the record by Mr. Muir. The gist of the controversy in the present case is as to whether the judgment of July 23, 1919, is still in force or effect, or whether it was lawfully vacated by the order of June 2, 1920, hence making the judgment of June 18, 1920, the only lawful judgment in the case of Rock Springs National Bank and Ray Boulter v. John W. Cook et al.
1. The term at which the judgment of July 23, 1919, was entered, ended on the second Monday of November, 1919. It is a rule well established, that after the term has ended, all final judgments and decrees pass beyond the control of the court, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them, and if errors exist, they can only be corrected by petition in error or appeal. Bronson v. Schulten,
"Every one having a matter in litigation before any tribunal, court or county board, must, in order to protect his rights, be present at every session at which the controversy may be determined, until there is a final disposition. He stays away at his peril; and if during his absence the matter is disposed of he can blame no one but himself. This in many cases is a great hardship. Many a suitor in the courts has felt it so, yet no remedy therefor has as yet been devised."
To the same effect, in some instances quoting the foregoing language, are: Weems v. McDavitt,
"There were no facts set forth in the affidavits or in any of them, showing any mistake or excusable inadvertence. They went simply and solely to the extent that defendant had no notice nor knowledge that the cause would be taken up for trial on February 4th. No valid or real reason or excuse was given for want of such knowledge, the defendant apparently relying upon want of notice that the case would be called and a day set for its trial."
In the case of Baker v. Hunt Co.,
"The plaintiffs in error knew that the case was pending in the county court and had been for some time, and it was their duty to use reasonable diligence to ascertain *471 when the case was set for trial. Neither the petition nor the evidence introduced discloses any efforts on the part of the plaintiffs in error, to ascertain the date on which the cause had been set for trial. The only excuse they offer is that neither the defendants nor their attorneys were notified by the court clerk that the cause had been set for trial on the 22nd day of January, 1915. The question has been thoroughly settled in this jurisdiction."
In the case of Tracy v. State,
"The only ground upon which the motion to vacate the judgment is predicated, is that neither Mat Wolf nor his attorney, had notice of the setting of the case for trial, which, in our opinion, is not a sufficient ground upon which to vacate the judgment rendered. * * * There is no law of this state that requires that attorneys or their clients be notified of the setting of the time for trial. It is the duty of any attorney to be diligent and ascertain when his case is set for trial."
In the case of Avery Co. v. Seeley,
"Where the losing party in a case tried in the district court files and submits a motion for a new trial which is taken under advisement without any definite time being fixed for its decision, and some weeks later is overruled, the fact that such party does not learn of the ruling for more than six months afterwards and therefore loses his right to appeal therefrom, does not entitle him to have the judgment and ruling on the motion set aside by the trial court, on petition showing these facts, although it also appears that it was the practice of the court to see that the parties were notified of such rulings. * * *" *472
The court said among other things:
"There was no mistake, neglect or omission of the clerk, nor was there any irregularity in obtaining either the judgment or the order overruling the motion for a new trial; the plaintiff's complaint is merely that he was not notified of the ruling. * * * If the plaintiff is entitled to relief * * * it must be for unavoidable casualty or misfortune, preventing the party from prosecuting or defending;"
See also Cooley v. Sapp,
In the case at bar, it is not suggested, and there is nothing in the record to indicate, that the case was not regularly on the calendar, or that the court acted oppressively. Even if it were true — which is not shown to be so — that the case was taken up and final judgment rendered therein before it regularly stood for trial, that would not avail the defendant in error, since the motion to vacate was not made within the first three days of the succeeding term, as is required in such cases under the provisions of Sec. 5923, W.C.S. 1920. The judgment was not entered until fourteen months after State v. Burns, supra, by reason of which the case was delayed, had been finally decided in this court. For five months more Cook or his counsel, though one of them had his office in the court house, did not find out about the judgment. It is clear that they did not attend court, did not watch their case and paid very little attention to it. The party wishing to amend or plead over when a demurrer is overruled must make a motion or offer to that effect, in default of which he cannot object to final judgment going against him. 31 Cyc. 357. This would be particularly true under our statute, section 5706 W.C.S. 1920, which provides that in such case the party who demurred may answer or reply, "if the court is satisfied that he has a meritorious claim or defense, and did not demur for delay." Manley v. Hunt,
"Better by far to prepare the legal conflict on the theory of utter loss and ruin and to stand firm and solid on the battlefield `from early morn til noon, and from noon till dewy eve', with all eyes alert, and all hands on the guns stubbornly contesting every inch of the ground, keeping in mind the while the old adage `That the race is not to the strong but to the vigilant."
It is apparent from the foregoing authorities that there was no irregularity in entering the judgment of July 23, 1919. Hence the only relief, if any, to which John W. Cook was entitled, would have been on account of unavoidable casualty or misfortune preventing a party from prosecuting or defending — a ground mentioned in subdivision 7, section 5923, supra, for opening or vacating a judgment. Avery Co. v. Seeley, supra, Carter v. Grimmett,
2. It is, however, contended by defendant in error, that the judgment of June 18, 1920, cannot be attacked collaterally, and we are cited to Reynolds v. Stansbury,
"But this rule is not that a judgment which is void, will be enforced as if it were valid, but that it can not be shown to be void, except in certain ways. If the party, however, should admit the facts which show the judgment to be void, or if he should allow them to be established without opposition, then as a question of law, upon such facts, we do not see why the case is not like that where a judgment is void upon its face."
To the same effect see 34 C.J. 531, Akley v. Bassett,
It follows, from what we have said, that the judgment of July 23, 1919, is still a valid and subsisting judgment; that both the judgments of June 2 and June 18, 1920, setting the former judgment aside, are null and void. Hence the tax deed issued to John W. Cook in pursuance of the latter judgment, is also void, and no good purpose would be subserved by sending the case back for a new trial. *475
The judgment of the district court in the present action must accordingly be reversed, and remanded with direction to vacate the former judgment herein and to enter judgment in favor of Ray Boulter and to grant him such affirmative relief as he may be entitled to under the pleadings and in accordance with the views herein expressed. It is accordingly so ordered.
POTTER, C.J., and KIMBALL, J., concur.
Addendum
The judgment of July 23, 1919 accordingly could not be opened pursuant to motion and notice of the motion served upon the attorney of record. If that judgment could be opened at all, it should have been done by taking the steps mentioned in section 5927, which provide for the filing of a petition and for the issuance of a summons to be served as in the commencement of an action. Counsel argue and cite many cases to the effect that a defective declaration or complaint does not deprive the court of jurisdiction to act in and determine the matter. We need not decide as to whether or not the motion in this case might have been considered *477 a petition sufficient to give the court jurisdiction of the subject matter. But no summons was issued and none was served upon Boulter. Not even notice of the motion referred to was served upon him, and he made no appearance to the proceedings. Hence even though the court had jurisdiction of the subject matter, it had no jurisdiction of the person of Boulter — a fact which counsel has entirely overlooked and ignored in his argument. Hence the orders of June 2 and June 18, 1920 must necessarily be void for want of jurisdiction of the person.
It would not do to hold that the notice of the motion served upon the attorney in the former case, is equivalent to the service of summons upon Boulter himself. We think it entirely probable that if the statute had been complied with and a summons been properly issued and served upon Boulter, he would have appeared and have sought to protect his rights. From aught that appears, he had no knowledge whatever of the proceedings seeking to set the judgment of July 23, 1919 aside. The attorney of record may have considered that his services were no longer necessary or desired and in the absence of a statute, in any event, we cannot hold that notice to him is binding upon a party to the action, and the equivalent of the service of summons upon the latter. The proceedings sought to deprive Boulter of valuable rights, of probably substantially all of the property that he had. Certainly, prudence would have suggested that he was entitled to the notice required by law. Counsel, who then acted in the case (not the present counsel for respondent), had notice of the motion aforesaid served upon the Rock Springs National Bank, a co-party of Boulter's, but for some unknown reason even that notice was not deemed necessary or desirable to be served upon Boulter. However that may be, the latter was, by the orders of June 2 and June 18, 1920, deprived of his property without the notice required by law, and so far as the record indicates, without any knowledge of these proceedings. And *478 to deprive him of his property in that manner would be the grossest injustice and not in accordance with due process of law.
The petition for rehearing herein must accordingly be denied, and it is so ordered.
POTTER, C.J., and KIMBALL, J., concur.