Ladd v. Higley

5 Or. 296 | Or. | 1874

By the Court,

Burnett, J.:

The principal point relied on by appellant’s counsel to reverse the judgment of the court below is, that the judgment of 1862 is void, for the reasons:

1. That there was no summons or notice issued in that action, such as the law required.

2. That the proof of the service of the notice, in that case, was not sufficient to give the court jurisdiction of the person of Higley; and

3. That the complaint in said cause did not state facts sufficient to constitute a cause of action.

The first question presented is, whether the judgment-roll, in the cause in which judgment was rendered in 1862, as before this Court for inspection or not.

It appears that the court below found the facts upon which the judgment appealed from is based, upon testimony that was admitted without objection; which findings are to the effect that the respondents did, on the 6th day of May, 1862, obtain a judgment in that court in their favor and against the appellant for the sum of $597.26; that said judgment was duly entered; that said sum of $597.26, and interest thereon at ten per cent, per annum from that date, is now due and unpaid, and that no execution upon said judgment has ever been issued. As the appellant claims that the judgment, upon which the above facts are found, is void, he should have objected to its admission in evidence, and excepted to the ruling of the court in admitting it, and, by his bill- of exceptions, brought the question properly before this Court.

There is no bill of exceptions nor statement, and we are to presume that the evidence was competent and properly admitted. It is, however, claimed by counsel for the appellant that tbe judgment-roll in tbe cause of 1862 is a part of tbe roll of this proceeding in 1874, and was properly made a part of tbe transcript. But this vi'ew is not sustained by tbe provisions of tbe code, in relation to proceedings of this kind. These provisions, after providing for tbe filing of tbe motion, service of summons and making up tbe issue and trial, which is very similar in all respects to an action, then provide that “tbe order shall specify tbe amount for which tbe execution is to issue, or tbe particular property, possession of which is to be delivered; it shall be entered in tbe journal and docketed as a judgment, and a roll thereafter prepared and filed, or a final record made of tbe proceedings, as tbe case may be, in tbe same manner as a judgment.” (Civil Code, § 292.)

Tbe case of Hunsaker v. Coffin (2 Or. 107), is cited by counsel for appellant, and relied on to sustain bis position. It does not appear in that case bow tbe trial was bad in tbe court below, and no question was raised as to tbe right of tbe appellate court to look into tbe judgment-roll in tbe original cause; but admitting that the judgment-roll of tbe judgment of May 6, 1862, is properly before this Court for , examination, that judgment could only be declared void if, upon an inspection of tbe whole record, it appears either that tbe court bad not jurisdiction of tbe person of the defendant therein, or that tbe complaint did not state facts sufficient to constitute a cause of action;

Upon tbe first point, tbe objection that tbe notice was not sufficient is not well taken. Tbe notice is in substantial compliance with tbe laws of 1859, which were then in force, and is sufficient. Tbe proof of service is tbe certificate of tbe sheriff of Yamhill County, to tbe effect that tbe complaint and notice were served on tbe defendant personally in Yamhill County, Oregon, on tbe 14th day of March, 1862, by delivering to him copies of tbe same.

It is claimed by appellant’s counsel that this proof of service is insufficient in this, that it does not appear that tbe sheriff' made tbe service. Tbe presumption is that official duty lias been regularly performed (Code, § 766); and when there is a certificate in due form signed by an officer showing service, as there is in this case, it is the duty of the Court to presume that the officer did his whole duty, and made the service, rather than that some other person made the service, and that the officer violated the law in certifying to it. Again, there is a recital in the judgment entry in the judgment of 1862, to the effect that Higley had been duly served in Yamhill County, Oregon, with the complaint and notice in that case, more than ten days before the term of court at which'the judgment was rendered, and nothing short of a clear contradiction in the roll will affect this recital.

As to the third objection, we think the complaint in the action in 1862 is good, as upon an account stated, and though it might be more specific, and no doubt would have been made so upon a proper motion, it would be going too far to hold that it is a nullity, and would not support a judgment by default.

It is further objected that the judgment appealed from in this case contains the words “renewed and revived,” but these words do not give the order for leave to issue an execution any greater effect than the statute gives it. It is to the statute the parties must look to find what effect such an order has upon the dormant judgment.

Judgment affirmed.