National Bank of America v. Home Security Co., 70 P. 646

70 P. 646 | Kan. | 1902

The opinion of the court was delivered by

Dostek, C. J. :

This action was a collateral attack by the National Bank of America on a judgment rendered appai’ently in its favor in the district court in a former case entitled Tucker v. Ericson et al.; whether in its favor or otherwise is immaterial to the question presented. The impeachment of the judgment was attempted'on the ground of lack of jurisdiction over the bank. The journal entry of judgment in the case mentioned was as follows :

“And it is further decreed, upon the application of the National Bank of America, and with ’the assent of the defendant John A. Nordstrom, that the amount due the defendant John A. Nordstrom on his lien be paid to the National Bank of America, of Salina, Kan., by the clerk of the district court, to be applied on its mortgage note, secured by a mortgage now of record on said premises, upon said National Bank of America filing in the office of the register of deeds of Saline county, Kansas, a full release of said mortgage and debt so far as it affects the lands hereinbefore described.”

The controversy in Tucker v. Ericson et al. related to real estate and claims of lien thereon. The pleadings in that case did not name the National Bank of America as a party, nor make any allegations in respect to its interests in the subject of the controversy, except that one of the defendants, after averring ownership in himself of the legal title to the land, alleged that he had executed a mortgage on it which, by assignment, had passed to the bank. No order to make the bank a party was made, nop was summons or other notice served on it. No evidence was introduced on the trial of the action to impeach the judgment tending to show that the bank had not intervened in the other suit and made application for, and procured, the order above quoted. Some slightly confirmatory evidence that it did so intervene exists in the record, but of this we take no note. The district court refused to disturb the former judgment, and accordingly error has been prosecuted to this court.

The principle that the judgments of courts of general jurisdiction will be presumed to be within the authority allowed, unless the record contains sufficient evidence to dispel the presumption, is one of universal application. (Butcher v. The Bank of Brownsville, 2 Kan. 70, 83 Am. Dec. 446; Haynes v. Cowen, 15 id. 637 ; Dexter v. Cochran, 17 id. 450.)

“The presumption, on collateral attack, that a judgment of a federal circuit court was within its jurisdiction is not overcome by the-fact that the transcript of the record, certified by the clerk to be a true copy of the record remaining in his office, does not include a summons to defendant, nor recite jurisdiction of his person.” (M’Connell v. Day, 61 Ark. 464, 83 S. W. 731.)

“A domestic judgment rendered by a court of general jurisdiction cannot be impeached by the parties to it, merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally conclusive oh the parties thereto, whether it recites or whether fails to recite, that jurisdiction has been acquired.” (McClanahan v. West, 100 Mo. 309, 13 S. W. 674.)

Many other cases are to the same effect, some of which are Applegate v. Lexington See. Mining Co., 117 U. S. 254, 269, 6 Sup. Ct. 742, 29 L. Ed. 892; Bush v. Lindsey, 24 Ga. 245, 71 Am. Dec. 117; Benefield v. Albert, 132 Ill. 665, 24 N. E. 634.

As to what limitations may circumscribe the rule above stated, or in what exceptional and anomalous cases it may not apply, we need not conjecture. It applies to this case. Here a pleading was filed' by a party to the action alleging the possession by the bánk of an interest in the subject-matter of the suit. The record is silent as to whether process of any kind was served on it, or whether a formal order admitting it as a party or requiring it to appear as a party was made. However, the record recites that it did appear as a party and that it procured an order in its behalf respecting the subject-matter of the litigation. Now, one may voluntarily appear to an action against him without the service of process on him, and one with interests to protect may intervene in controversies between other persons and be admitted as a party thereto, and in all such cases we think that, to say the least, if there is in the record of a court of general jurisdiction any pleadings connecting the outside party with the subject of the litigation, and averring a liability against him or an interest in his favor, and there further appears in the record a recital of his appearance in the case, jurisdiction over him will be presumed.

The judgment of the court below is affirmed.

All the Justices concurring. Burch, J., not sitting, having been of counsel.