Gallagher v. National Nonpartisan League

205 N.W. 674 | N.D. | 1925

This is an appeal from an order denying an application to set aside a default judgment.

The above entitled action was commenced March 15th, 1922. Nine persons were named as defendants both as individuals and in a representative capacity. The case was placed upon the calendar of the December, 1923 term of the district court of Burleigh county, and judgment by default was rendered on December 13th, 1923. In June 1925, an application was made by four of the defendants, viz.: George A. Totten, Jr., Christ Levang, R.H. Walker, and R.A. Craig, to have the judgment vacated and set aside as against them. The application was made on the ground, among others, that no service of process had been made upon the said defendants at all and that consequently the judgment rendered was void and of no effect. The trial court granted the motion as to the defendants George A. Totten, Jr., and R.A. Craig; but denied the same as to the defendants R.H. Walker and Christ Levang, and these latter two have appealed from the order denying their application.

In our opinion the order appealed from must be reversed. The rules governing both trial and appellate courts in the determination of motions of this kind are so well settled in this jurisdiction that it is unnecessary to restate them. The judgment roll in this case shows that at the time the judgment was rendered there was on file an affidavit of service showing that the summons and complaint in the action had been served upon one of the defendants named Fred Argast; but there was no proof that it had been served upon any of the other defendants named in the action. There was also on file a notice of trial and note of issue which bears an admission of service signed by one Harry Lashkowitz who is denominated "attorney for defendants." Upon the application for a vacation of the judgment there was submitted among others an affidavit of said Lashkowitz wherein he states that after the above entitled action was commenced one Liederbach, who is one of the defendants in said action, came to the office of said Lashkowitz "and asked affiant to prepare an answer for himself (Liederbach) and some of the other defendants above named, expressing himself to affiant that he felt it was his duty to protect these defendants in the above entitled action and that affiant proceeded to prepare such answers and did prepare them and had same served on the attorney for the plaintiff." Affidavits were submitted by the defendants Christ Levang, George A. Totten, Jr., and R.A. Craig, positively asserting that they had never been served summons and complaint; had never made any appearance in the action and had never authorized any attorney to appear in their behalf.

Certain rebuttal affidavits were also submitted by the plaintiff. We deem it unnecessary to review the various affidavits in detail. It is sufficient to say that we are of the opinion that when the affidavits submitted by both sides and the files and records in the case are considered and construed as a whole the result is this: there is no proof that any service of the summons and complaint was made upon either of the defendants, R.H. Walker or Christ Levang; and it is affirmatively shown that neither of these defendants ever retained, or in any manner authorized, said Harry Lashkowitz to appear as his attorney in the action. The record discloses that at the time the default judgment was rendered and entered there was no proof of any kind that service of the summons in the action had been made upon either of the said two defendants. The only basis for jurisdiction to render the judgment was the appearance of said Lashkowitz as attorney for said defendants. The affidavits submitted, however, clearly show that Lashkowitz was never retained by either of the defendants, and had no authority to appear for either of them. The only possible support for a holding that the summons had in fact been served upon the defendant Levang is the statement in an affidavit by the plaintiff that the said Levang in a certain conversation stated to the plaintiff "that he (Levang) had been served with some papers in the action while in Fargo in the year 1922, but that he was under the impression that the action in which the papers had been served had been settled." Opposed to this is the positive affidavit of Levang that he had "never been served with a summons and complaint in said action," and "that the first that he knew about said action was about January 1st, 1925." There was no showing, either by the return of an officer or the positive affidavit of some individual, that summons in the action was ever served upon said Levang. And so far as Walker is concerned there is no claim that he ever admitted that papers had been served upon him, and there is no showing of any kind that any papers were in fact served upon him. After a careful consideration of the various affidavits, and the files in the case, we have reached the conclusion that the summons in this action was never served upon either Walker or Levang, and that neither of these parties ever authorized Lashkowitz to appear as his attorney. We are further of the opinion that the evidence in the record does not reasonably justify any other conclusion. This being so it was error for the trial court to refuse to vacate the judgment. It is a fundamental principle of our jurisprudence — imbedded in the fundamental laws of both state and nation — that no one shall be personally bound until he has had his day in court, that is, until he has been duly summoned to appear, and has been afforded an opportunity to be heard. And "judgment without such citation and opportunity wants all the attributes of judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered." 6 R.C.L. p. 447.

Nor do we believe that this void judgment became vested with life and validity because the defendants, when they sought relief against the judgment, made a general appearance. As was well said by this court in Yorke v. Yorke, 3 N.D. 343, 349, 55 N.W. 1095: "We can well understand that where a defendant against whom judgment has passed, but who was in no manner served with process, comes into court, and asks to have that judgment set aside by reason of such want of service, and also for other alleged irregularities connected therewith, by asking the court to investigate such other irregularities he submits himself to the jurisdiction of the court, and can no longer be heard to say that the court has no jurisdiction over his person. We can understand, also, that if, upon investigation, the court finds that such irregularities do not exist, and refuses to set aside the judgment, the defendant is forever bound by such rulings, unless reversed in a higher court. But we do not understand upon what principle it is held that the mention of such other irregularities in connection with the want of jurisdiction should forever preclude any investigations into the existence of such irregularities. A defendant who has not been served with process may have the judgment against him set aside for that cause. If plaintiff desires to proceed further he must then bring the defendant into court by proper service, and, when so in court, defendant may demur to the complaint, or defend, as he sees proper. But if, when he asks to have the judgment set aside, he goes one step further, and says to the court: `Notwithstanding the fact that I was never served with process, yet I now aver that plaintiff states no cause of action against me in his complaint, and I ask to have the judgment set aside for that reason also,' by what legal necessity or propriety can it be said that he thereby shuts his own mouth, forecloses the question, and forever makes the complaint good, as against himself?"

In their motion to vacate, the defendants assailed the judgment on the ground, among others, that the court was wholly without jurisdiction over the persons of the defendants for the reason that no process had been served upon them, and that they had made no voluntary appearance in the action, and that consequently the default judgment was void. But the defendants did not content themselves with the assertion of these facts; they went further and as a part of their moving papers tendered answers, — answers, which in our opinion set forth good defenses to the causes of action alleged in the complaint. While the general appearance of the defendants thus made did not operate retrospectively, so as to render valid the previous judgment, — which in legal effect was a mere nullity, — such appearance was and is operative as a general appearance in the action as of the date made, operating prospectively. Yorke v. Yorke, supra.

The order appealed from is reversed and the cause is remanded with directions that the district court set aside the judgment and permit the defendants, R.H. Walker and Christ Levang to defend in said action.

JOHNSON, BURKE, BIRDZELL, and NUESSLE, JJ., concur.