Houser v. Smith

19 Utah 150 | Utah | 1899

After stating the facts,

Miner, J.,

delivered the opinion of the court:

It appears from this decree that in the case of Maggie Smith v. Charles Smith, no complaint was ever filed against Joseph E. Morgan or August W. Carlson, and no summons was ever served upon them in that action, nor did either of said parties ever appear, nor were they ordered to appear therein. Writs of injunction were served, forbidding them from transferring or disposing of the property. No default was ever entered against them or either of them, and there is no record in the decree that they were ever made parties, but it does appear that they testified as witnesses. It does appear from the testimony that the conveyance was made by Smith to Morgan more than a year before Smith knew or was married to the plaintiff. There is no fraud charged against Morgan or Carlson in the complaint, as in any manner affecting the plaintiff. No effort was made to have Morgan or Carlson brought in as defendants in the case of Smith v. Smith,

Sec. 3192, Compiled Laws 1888, provides that ‘‘the court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy can not be had without the presence of other parties, the court must then order them to be brought in, and thereupon the party directed by the court must serve a copy of the summons in the action, and the order aforesaid in like manner of service of the original summons, upon each of the parties ordered to be brought in, who shall have ten days, or such time as the court 'may order, after service in which to appear and plead; and in case such party fail to appear and plead within the time aforesaid, the court may cause his default to be entered, etc.”

Appellant claims to rely upon Sec. 3301, Compiled Laws of 1888, and claims to have proceeded under that section, but this section was repealed in 1890. See Session Laws 1890, page 17.

If this section was in force, it would not be applicable to this case. On the trial of the case, some evidence was offered tending to show fraud, but as fraud was not pleaded, the evidence tending to show it was improper. Wilson v. Sullivan, 17 Utah, 341; 53 Pac. Rep., 994.

The plaintiff placed in issue her rights to the land in question under the decree and deed from the marshal. The defendants, Morgan and Carlson, were strangers to the proceedings under which the decree was obtained. This property was wrongfully and illegally decreed to belong to another party without the owners being made parties to the action dr having any opportunity to be heard in court to defend the title thereto. After their rights to the property were made known to the court no proceedings were taken, as provided by statute, to make either Morgan or Carlson parties so that the title to the land could legally be determined. The defendants, Morgan and Carlson, alleged in their answer, and the proofs show, that they were not parties to the proceeding wherein Maggie Smith was plaintiff and Charles Smith was defendant, in which a decree was rendered, declaring said deed from Smith to Morgan fraudulent and void. On the face of the record as shown, the decree in the case of Smith v. Smith in so far as it declares said deed and mortgage void, is wholly and absolutely void, and was rendered without .jurisdiction over the persons or property of said Morgan and Carlson. It is not a question of collateral attack upon the judgment. The record presents a case where the judgment is shown to be absolutely void, and rendered against persons who were not before the court and over whom the court had no jurisdiction. Courts have no right to dispose of and adjudicate upon the property rights of persons who are not parties to the case, and who are total strangers to the record. Van Fleet on Collateral Attack, Sec. 16, and also 494; Mosby v. Gisborn, 54 Pac. Rep., 121; 17 Utah, 257.

We are of the opinion that the findings of fact and the decree are sustained by the evidence. We find no reversible error in the record.. The findings and judgment of the district court are affirmed with costs.

BaRtoh, C. J., and Basein, J., concur.