19 Kan. 458 | Kan. | 1878
Lead Opinion
The opinion of the court was delivered by
This was an action in the nature of ejectment. The plaintiff claims title to the land in controversy, under a sheriff’s deed, purporting to convey such land from one Jane Hicks Brown, the judgment-debtor, to one of the persons under whom the plaintiff claims. The defendant Gray claims title under a deed executed by said Jane Hicks Brown herself. The main question in the case is, whether said sheriff’s deed is valid or not. But involved in this question are these other questions: Can a constable’s return of service on an original summons in a justice’s court, and all subsequent proceedings founded thereon, including a sheriff’s deed, be impeached in an action in the nature of ejectment by evidence aliunde showing said constable’s return to be false, and showing that the defendant, in the justice’s court, never in fact had any notice of the pendency of the suit in such court?
It appears from the record in this case that, on the 15th of December 1860, one S. P. Bartlett commenced an action in a justice’s court, in Wyandotte county, on two promissory notes against said Jane Hicks Brown. A summons was duly issued by the justice and delivered to H. H. Sawyer, constable. Afterward the constable returned the same with the following indorsement thereon, to-wit: “Executed on the 15th December 1860, by leaving a certified copy at the usual place of residence of the within named defendant, Jane Hicks Brown. —H. H. Sawyer, constable.” Jane Hicks Brown made no appearance in the justice’s court j and therefore the justice at the proper time rendered judgment against her by default for $38.85 and costs. A transcript of this judgment was duly filed in the district court, execution was issued thereon, said land was sold under the same, the sale was duly confirmed
A judgment void for want of notice may be set aside at any time even after the lapse of more three years, on a motion made therefor by the defendant. Foreman v. Carter, 9 Kas. 674. And this may be done in some cases even where it requires extrinsic evidence to show that the judgment was rendered without notice and without jurisdiction. Hanson v.
The decisions upon the question which we are now discussing are conflicting and contradictory, and of course they cannot all be good law. The case of Hahn v. Kelley, supra, is disapproved in the case of Galpin v. Page, 3 Sawyer, 94, 106, (this last decision following that of Galpin v. Page, 18 Wall. 350.) The case of McDonald v. Leewright, supra, is decided upon the sole ground that a sheriff’s return cannot be impeached in any ease, except in an action against the sheriff for a false return, which ground, as we have already seen, is wholly untenable in Kansas. The case of Callen v. Ellison, supra, seems to enunciate the doctrine that a judgment rendered upon an appearance by an attorney, cannot be impeached in a collateral proceeding by showing that such attorney 'had no authority to make any such appearance. The decision in the case last mentioned may perhaps not go quite to this extent. If it does not, then it is not applicable to this case; but if it does, then it will be found to be in conflict with the following decisions heretofore cited, to-wit: Shelton v. Tiffin, Starbuck v. Murray, Shumway v. Stillman, Kerr v. Kerr, Price v. Ward, and Aldrich v. Kinney. See also, Bodurtha v. Goodrich, 3 Gray, 508.
The Michigan case of Willcox v. Kassick, supra, was an action of debt on a judgment; from a sister state. The record upon its face showed jurisdiction, and the judgment appeared to be valid; and the court in that case held that such judgment could not be impeached for want of jurisdiction. There are other cases holding the same thing which we have not cited. They so hold upon the theory that a judgment from a sister state is just as good as a domestic judgment, and that a domestic judgment could not be so impeached. The theory that a judgment from a sister state is entitled to the same faith and credit as a domestic judgment, is unquestionably correct. It is sustained by all the authorities, from the decision in the case of Mills v. Duryea, 7 Cranch, 484, down to the present day. And of course, if a domestic judgment cannot be impeached collaterally, and by extrinsic evidence, a judgment from a sister state cannot be so impeached. But
The cases of Granger v. Clark, and Cook v. Darling, supra, do not seem to have received much consideration from the courts that decided them; and the decision in the case of Finneran v. Leonard, supra, is founded on that in the case of Cook v. Darling. The case of Cook v. Darling makes a distinction between the records of courts of superior jurisdiction and courts of inferior jurisdiction — holding that a judgment of an inferior court may be impeached collaterally for want of jurisdiction, while a judgment of a superior court cannot be so impeached. The judgment sought to be impeached in the case at bar is a judgment of a court of inferior jurisdiction. The case of Lightsey v. Harris, supra, is very much like the case of McDonald v. Leewright, supra. The case of Coit v. Haven, supra, is like the case of Cook v. Darling in making a distinction between courts of superior and inferior jurisdiction.
Several of the cases cited as showing that judgments may be impeached collaterally for want of jurisdiction, are open to objections as to their exact applicability to the case at bar. But still it will be found in all of them that either the decision of the court itself, or the language of the judge in delivering the opinion of the court, is applicable. Of course, all decisions made by state courts concerning the impeachment of domestic, judgments collaterally, and by extrinsic evidence, are exactly applicable to the present case, unless such decisions are controlled by local statutes. Also all decisions made by federal courts, in cases commenced in the same state in which the judgments sought to be so impeached were rendered, are clearly applicable. .(This includes the decisions in the cases of Elliott v. Piersoll, Hickey v. Stewart, Shelton v. Tiffin, Williamson v. Berry, and Webster v. Reid, supra.) If
In an action in the nature of ejectment, such as the present action is, the validity of a judgment under which either party claims title, is just as much in issue as the validity of’ any judgment in any action can be. But there is this difference: in the most of actions, where the validity of a judgment is put in issue, the pleadings must specifically show the issue. But in ejectment this is not necessary. In ejectment all that is necessary for the plaintiff to do is to allege in his pleading “that he has a legal or equitable estate” in the land in controversy, describing the same, and that he “ is entitled to the possession thereof;” while all that is necessary for the defendant to do is simply to deny the plaintiff’s allegations. And then everything is in issue that will sustain either title or defeat either title; and each side is bound to take notice thereof. Everything is in issue as much as though it was set out in the pleadings in the most elaborate detail, and with the greatest circumstantial particularity. Probably no action, except one to reverse, vacate, modify, suspend, or perpetually enjoin a judgment, can be said to be a direct attack upon such judgment. And if not, then ejectment cannot be a direct attack upon any judgment. But where the validity of a judgment is in issue in ejectment, the attack upon the judgment is as direct as it can be in any other action, except an action to reverse, vacate, 'modify, suspend or perpetually enjoin the judgment, and the parties are in law and by the nature of the action bound to take notice of this attack just as much as they would in any other action.
The judgment of the court below will be affirmed.
Concurrence Opinion
I concur in the foregoing opinion, but as the question is one of very grave importance, I wish to add,
Under the federal statutes, the plaintiff, being a citizen of another state, and the defendants citizens of Kansas, either party could have removed the suit before trial to the United States circuit court for this district. If the defendants had •taken advantage of this statute authorizing such removals, under the decisions of the federal courts it seems to be settled that the pretended judgment could have been successfully impeached by the defendants in that court. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight and Coke Co., 19 Wall. 58; Earle v. McVeigh, 1 Otto (U. S.) 503; Shelton v. Tiffin, 6 How. 163; Webster v. Reid, 11 How. 437; Elliott v. Piersoll, 1 Pet. 328. See also, Pennoyer v. Neff, Sup. Ct. of U. S., Feb. 1878, 6 Cent. L. J. 252.
If we now hold that the defendants cannot obtain the same rights under our practice in our own courts, as in the federal courts held in the state, or if we remit the defendants to other modes of redress than awarded them in the district court, we deprive our own courts of some authority and power, and restrict their procedure upon grounds of policy unknown to federal practice. We would thus tend to swell the litigation in the federal courts, whose extensive and encroaching juris
Dissenting Opinion
I dissent from the views expressed by my brethren in this case. I think that as to all domestic judgments, where upon the face of the record everything is regular, the judgment rendered upon legal and sufficient service, it is conclusive as against any collateral attack. Public policy requires that judicial proceedings apparently valid should be held valid as against everything but a direct attack. Under the rule laid down by the court, a solemn judgment of any court, even a court of record and of general jurisdiction, may be blown to pieces by the testimony of' a single interested witness in an action in which the pleadings give no notice of any question of the validity of the judgment. In any direct attack, the party claiming rights based upon the judgment has specific notice, and may .prepare his testimony accordingly. In this very case, if the plaintiff had specific notice of the objection to the validity of the judgment, he might perhaps have shown by many witnesses that the return of the constable was in fact true. My brother Valentine has fully referred to the authorities and arguments, and I simply desire to express my dissent to the conclusions reached by him and the Chief Justice.