Kinney v. Owens

89 P. 573 | Wyo. | 1907

Beard, Justice.

On May 31, 1904, in an action then pending in the District Court of AVeston County, entitled, “The Bank of Newcastle, a corporation duly organized and doing business under the laws of the State of AVyoming, and Harry B. Henderson, State Examiner in charge, plaintiffs, vs. The Union Meat Company, a corporation duly organized under the laws of the State of Wyoming; Pit Aimonetto, John Giachnio, and Pete Kinney, defendants,” a judgment was rendered by default in favor of the plaintiffs and against the defendants for $823 and costs. On January 20, 1905, an execution was issued on said judgment and placed in the hands of John Owens, sheriff of said county,'who is the defendant in this proceeding, for service. Pete Kinney, one of the defendants in said action, who is plaintiff in this proceeding, commenced this proceeding to set aside and vacate said judgment. The petition to vacate said judgment was presented to the court commissioner of said county and an injunction was issued by him suspending further proceedings on said judgment and execution until the further order of the court, as provided in Section 3802, R. S. 1899. A general demurrer to the petition was filed by the defendant, but the record fails to disclose any ruling thereon, and the defendant filed an answer to the petition. On the trial the District Court found generally for the defendant, dismissed plaintiff's petition, dissolved the temporary injunction and rendered judgment against the plaintiff for costs, and he brings error.

This .proceeding was brought, as stated by counsel for plaintiff in his brief, “to vacate and set aside the said judgment, under the provisions of Section 3795 of the statute, especially sub-divisions 1, 3 and 4 thereof.” That section of the statute provides that a District Court may vacate or modify its own judgment or order, after the term at which the same was made, in the manner and on certain grounds therein specified. Section 3799 of the same chapter is as follows: “The proceedings to vacate the judgment or order on the grounds specified in sub-divisions 4, 5, 6, 7, 8, 9 and 10 of Section 3795, shall be by petition, verified by affidavit setting forth the judgment or order, the grounds to vacate or modify it, and if the party applying was defendant, the defense to the action, and on such petition a summons shall be issued and served as in the commencement of an action.” This proceeding was properly commenced by petition, but whether such petition should be in the original action in which the judgment sought to be vacated was rendered or in an independent proceeding was expressly left undetermined in State ex rel. Bank of Chadron v. District Court, 5 Wyo., 227, and need not be determined here. In that case, however, the court expressed the opinion that the better practice is by a separate petition. In either case when the application is made by a defendant, the judgment plaintiffs are necessary parties to the proceeding. They are the parties directly interested in maintaining the validity of the judgment, and we are unable to see how any order vacating or modifying the judgment could properly be made by the District Court without having them before the court. (Day v. Goodwin, 104 Ia., 374; 65 Am. St. Rep., 465; Willis v. Peet, 26 La. Ann., 156; Weidersum v. Naumann, 62 How. Pr. Rep. (N. Y.), 369; 23 Cyc., 951-2; 15 Ency. Pl. & Pr., 257.) And in Bever v. Beardmore, 40 O. St., 70, it was held, that where a defendant was the applicant his co-defendants were necessary parties to the petition to vacate a judgment rendered at a former term. Even in the absence of authority on the point, it is clear that the rights of the judgment plaintiffs could not be affected or the judgment vacated until they had been brought in and had an opportunity to defend. The only parties to this proceeding were Kinney, one of the defendants, and the'sheriff. The judgment plaintiffs were not made parties, were not summoned and did not appear: Therefore, no order could be made or judgment entered which would affect their rights. The plaintiff was not entitled to an injunction perpetual^ restraining the enforcement of the judgment, which upon its face appears to be valid, until it was proven to be invalid; and as that could not be done without making the judgment plaintiffs parties to the proceeding, we think the District Court properly dismissed the plaintiff's petition. The judgment of the District Court, therefore, is affirmed. Affirmed.

Potter, C. J., and Scott, J., concur.