54 P. 208 | Or. | 1898
after stating the facts, delivered the opinion of the court.
It is contended by defendants’ counsel that the sheriff’s return upon the summons in question is conclusive upon the parties to the action ; that plaintiff cannot controvert the facts recited therein ; and that, if he has been injured thereby, his remedy is an action against the officer for a false return, — while plaintiff’s counsel maintain that the judgment rendered upon the false return, without notice to, appearance of, or defense by their client, is void ; that the circumstances rendering it so are not apparent from an inspection of the record, and, such being the case, a court of law is powerless to arrest the execution of the judgment, in view of which a court of equity is competent, and should, upon proof of the falsity of the return, afford the relief prayed for. The question presented by this appeal is one which the courts have considered with much care, resulting in decisions that are wholly irreconcilable. It was early held by the common law courts
Much complaint was made by those who were opposed to such equitable intervention, and at last, to settle the heated controversy, the matter was referred to the king (James I.) who, having obtained the advice of his counsel, gave judgment in favor of the equitable jurisdiction : 3 Blackstone’s Commentaries, 53; 1 Story, Equity Jurisprudence, § 51. This decision, rendered A. D. 1616, was not satisfactory to those admirers of the principles of the common law who opposed any interference with the judgments of its courts by a court of equity; and from that time to the present the doctrine has been and is to some extent maintained that the judgment of a court of general jurisdiction ought not to be set aside by a court of equity upon evidence aliunde the original
In a note to the case of Taylor v. Lewis, 19 Am. Dec. 135, it is said: “The rule stated in the principal case, that a judgment cannot be impeached in equity as fraudulent and void when it appears that the officer, without combination with the plaintiff, has returned process as served on the defendant, when in fact the same never was served, can hardly be considered the prevailing rule at the present day. A few decisions are found affirming the same, but most of the modern authorities are opposed thereto.” Further in the note the learned editor says : “It would seem to be one of those self-evident axiomatic propositions, that might be safely asserted without fear of successful contradiction, that no greater fraud can possibly be perpetrated than to deprive a person of his property without giving him an opportunity to be heard in his defense. To do so is repugnant to our sense of natural justice, opposed to the underlying principles of all free governments, deriving their authority from a written constitution, and is seldom, if ever, sanctioned, except where might, and not right, prevails. Yet the authorities just quoted undoubtedly have that effect; for when it is asked, and that, too, of those marvels of wis
As supporting the rule, the reason for which is so ably set forth in the foregoing note, see, also, 1 Black, Judgm. §§ 376, 377 ; 2 Freem. Judgm. (4th Ed.) § 496; 1 High. Inj. (3d Ed.) §§ 222, 229 ; 1 Spell. Extr. Belief, § 138 et seq.; 10 Am. & Eng. Enc. Law, 907 ; Crafts v. Dexter, 42 Am. Dec. 666; Handley v. Jackson, 31 Or. 552 (65 Am. St. Rep. 839, 50 Pac. 915) ; Moore v. Town Council, 32 Fed. 498; Noyes v. Hillier, 65 Mich. 636, (32 N. W. 872) ; Hamilton v. Rogers, 67 Mich. 135 (34 N. W. 278) ; Ogden v. Davidson, 81 Va. 757; Johnson v. Gregory, 4 Wash. 109, (31 Am. St. Rep. 907, 29 Pac. 831) ; Great West Min. Co. v. Woodmas M. Co., 12 Colo. 46, (13 Am. St. Rep. 204, 20 Pac. 771) ; Owens v. Ranstead, 22 Ill. 161; Weaver v. Poyer, 79 Ill. 417 ; Magin v. Lamb, 43 Minn. 80, (19 Am. St. Rep. 216, 44 N. W. 675) ; Ferguson v. Crawford, 70 N. Y. 253. Many more decisions might be cited which support the doctrine that a court of equity has plenary power, and ought, to enjoin a judgment at law based upon the false return of an officer, but the foregoing will serve to illustrate the wisdom of the more modern rule, which demonstrates that the action at
A court of equity should not set aside a judgment at law except upon clear, satisfactory, and convincing proof of a lack of service of process by the officer making the return of service, which must always be prima facie evidence of the material facts recited therein. Randall v. Collins, 58 Tex. 231; Starkweather v. Morgan, 15 Kan. 274; Jensen v. Crevier, 33 Minn. 372, (23 N. W. 541); Wyland v. Frost, 75 Iowa, 209 (39 N. W. 241) ; Connell v. Galligher, 36 Neb. 749, (55 N. W. 229). Without attempting to quote any of the testimony introduced at the trial, we think it sufficient to support the findings of the court, and to satisfy the requirements of the foregoing rule ; and hence the decree is affirmed.
Aeeirmed .