| Idaho | Dec 12, 1907
Lead Opinion
This is an action to quiet title to about 157 acres of land, as per government survey, situated in Nez Perce county. Appellant in his complaint claims title, in fee, to said lands and alleges that respondent makes some claim thereto adverse to him, and that such claim is without any right whatever, and prays to have the title thereto quieted in himself. The respondent answered, denying the ownership of said lands in the plaintiff, and avers that respondent is the owner of such land, and for a further answer avers that he obtained title to said land under sale by execution issued in the case of Edmund D. Potvin v. William Malanfant, to enforce a judgment rendered in the district court in and for Nez Perce county, which judgment was against Malanfant and in favor of the respondent. After a trial of the cause, judgment was entered in favor of the respondent. A motion for a new trial was overruled and this appeal is from the judgment and order denying the motion for a new trial. The appellant bases his title to said land upon a deed to said premises from Malanfant to the appellant.
The real controversy arises over the validity of the judgment in the case of Potvin v. Malanfant, for unless that deed is void the appellant has no title and is not entitled to have the title to said land quieted in himself. Counsel for appellant contend that said judgment was absolutely void by reason of the failure of Potvin in his suit against Malanfant to get service of summons on him by publication as required by law. The first question presented is whether this is a collateral or direct attack on that judgment. This action was instituted to quiet the title to said land in the appellant. That was its ultimate object and purpose, and in order to do that, said judgment in the Malanfant case must be held to be void. This action is clearly a collateral attack on that judgment. In 1 Black on Judgments, section 252, the author
The next question to be considered is: What record may be used in a collateral attack upon a judgment of this kind? By the provisions of section 4456, it is provided that the judgment-roll in cases where the complaint is not answered, shall be composed of “the summons with the affidavit or proof of service and the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment.” That section was adopted from the Code of Civil Procedure, section 670, of California, and in construing that section, the supreme court of California in a number of decisions have held that the judgment-roll in cases like the one at bar under that section of the statute, consists of the summons^ the affidavit or proof of service, the complaint with the default indorsed thereon, and a copy of the judgment. (Halm v. Kelley, 34 Cal. 391" court="Cal." date_filed="1868-07-01" href="https://app.midpage.ai/document/hahn-v-kelly-5436559?utm_source=webapp" opinion_id="5436559">34 Cal. 391.) That decision was rendered in 1868 and is reported in 94 Am. Dec., at page 742, and to that is attached an exhaustive note by the learned author, Freeman, which is very instructive, and cites many of the leading de
The case of Hahn v. Kelley, supra, has been very extensively cited, not only by the supreme court of California, but'by the courts of many other states, and the rule laid down in that case has to some extent been modified or overruled by subsequent decisions of national and state courts. Mr. Freeman says in the note referred to that the first case in which the doctrines of the principal case were called in question is Galpin v. Page, 3 Sawy. 93" court="None" date_filed="1874-08-31" href="https://app.midpage.ai/document/galpin-v-page-9301729?utm_source=webapp" opinion_id="9301729">3 Saw. 93, Fed. Cas. No. 5206. Mr. Justice Field delivered the opinion in that case sitting as presiding judge of the United States circuit court for the ninth circuit. In the course of that opinion it is. said: “The first position ' (referring to Hahn v. Kelley), that when a judgment of a court of general jurisdiction is produced in evidence, it can only be collaterally attacked for matters apparent upon its record, and that, in the absence of such matters, the jurisdiction of the court must be conclusively presumed, is, with certain qualifications and exceptions, undoubtedly correct. These qualifications and exceptions arise where the proceedings, or the parties against whom they are taken, are without, the ordinary jurisdiction of the court and can only be brought within it by pursuing special statutory provisions.” The learned justice, referring to the statute of California allowing constructive or substituted service, said: “The validity of the statute can only be sustained by restricting its application to cases where, in connection with the process against the person, property in the state is brought under the control of the court, and subjected to its judgment, or where the judgment is sought simply as a means of reaching such property or affecting some interest therein, or to cases where the action relates to the personal status of the plaintiff in the
In the Malanfant case, the question of a personal judgment was not involved, at least to no greater extent than the value of the real estate attached in that action was concerned, which real estate was within the jurisdiction of the district court which tried that action. If service of summons is made by publication in an action where the defendant is not a resident of the state, and he has no property within the state, on the authority of Pennoyer v. Neff, 95 U.S. 714" court="SCOTUS" date_filed="1878-01-21" href="https://app.midpage.ai/document/pennoyer-v-neff-89656?utm_source=webapp" opinion_id="89656">95 U. S. 714, 24 L. ed. 565. and Galpin v. Page, 3 Sawy. 93" court="None" date_filed="1874-08-31" href="https://app.midpage.ai/document/galpin-v-page-9301729?utm_source=webapp" opinion_id="9301729">3 Saw. 93, Fed. Cas. No. 5206, and decisions along that line, the judgment would be absolutely void because a personal money judgment cannot be legally obtained on constructive service of summons — service by publication. And if it appears on the face of the judgment-roll that a personal judgment has been rendered against a nonresident who had no property in the state, such judgment is absolutely void under the decisions above cited.
The legislature of this state has seen fit to adopt said section 4456, Revised Statutes, from the practice act of California, which was done after the supreme court of California had construed the provisions of that section, and the general rule is that one state adopting the provisions of the statute of another state adopts with.it the constructions placed upon it by the supreme court of the state from which it is adopted; and further than that, it seems to me that the language of that section is too plain to require construction. It provides that the following papers shall constitute the judgment-roll, to wit: “In case the complaint be not answered by any defendant, the summons with the affidavit or proof of service and the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment.” The specific papers are therein named that go to make up the judgment-roll, and if the legislature had intended that the affidavit for the order of publication and the order of publication should be contained in such roll, it certainly would have named them.
Counsel for appellant contend that this court in Strode v. Strode, 6 Idaho, 67" court="Idaho" date_filed="1898-02-26" href="https://app.midpage.ai/document/strode-v-strode-5168431?utm_source=webapp" opinion_id="5168431">6 Idaho, 67, 96 Am. St. Rep. 249, 52 P. 161" court="Idaho" date_filed="1898-02-26" href="https://app.midpage.ai/document/strode-v-strode-5168431?utm_source=webapp" opinion_id="5168431">52 Pac. 161, held that the affidavit and order for publication of summons was a part of the judgment-roll. In that case the question was not raised as to what constituted the judgment-roll, and the record contains the affidavit of the publisher of the newspaper named in the order for publication, stating the time that the alias summons was published. The record failed to show that a copy of the summons and complaint had been sent to the defendant as required by law, and the main point in that. case was that the proof of service of summons failed to show that a copy of the summons and complaint were mailed to the
The case of Mills v. Smiley, 9 Idaho, 325, 76 P. 783" court="Idaho" date_filed="1903-12-21" href="https://app.midpage.ai/document/mills-v-smiley-5168915?utm_source=webapp" opinion_id="5168915">76 Pac. 783, is cited by counsel for appellant as sustaining the position that the judgment-roll must contain the affidavit on the application for an order for publication of summons, and the order of the judge made thereon. That case was an appeal from an order made by the court denying the motion to set aside a writ of assistance in that action. The original action was brought to foreclose a mortgage, and the decree foreclosing the mortgage and ordering the sale of the mortgaged property was entered, and thereafter the court granted a writ of assistance in said action against Smiley. Smiley thereafter made application to have the order granting said writ of assistance set aside and the court denied the application and the appeal was from such order of denial. The trial court in passing upon that question had before it the record containing the affidavit on the application for the order directing publication of summons, and the order directing such publication. When the case was brought to this court on appeal, that record was brought here and this court reviewed that record and considered the ease as a direct attack upon that judgment, and not collateral, for the reason that the application for the writ of assistance had been made in that action and was an order made in that action after final judgment. In that view of the case, the court considered the sufficiency of the said affidavit and order. The court therefore passed upon that ease as being a direct attack upon the judgment, and for that reason it is not an authority in the case at bar.
We therefore conclude that this action is a collateral attack on the judgment of a court of general jurisdiction. That being true, the fact that the judgment is void must appear
Concurrence Opinion
Concurring.
In concurring in the conclusion reached in this case, I think it best that I state the specific grounds on which I base my concurrence. Section 4456, Revised Statutes, was taken from the California code (Deering’s Code of Civil Procedure, section 670) and adopted literally into our code of laws. At the time of and prior to its adoption here, the supreme court of California held that the affidavit and order for publication of summons were not a part of the judgment-roll and had no place therein. (See cases in main opinion.) Under the general rule governing the construction of a statute adopted from another state where it had already been construed, I feel constrained to-concur in the opinion of Justice Sullivan. In Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246, this court held that “When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation, and with the purpose of adopting the language as the same had been interpreted and construed by the courts-of the state from which it was taken. ’ ’ Personally, I do not think the statute even meant what the California court has said it meant. When the legislature said that “in case a. complaint be not answered by any defendant,” the judgment-roll shall contain “the summons with the affidavit or proof of service,” it never, in my judgment, intended that
Rehearing
ON PETITION FOR REHEARING.
A petition for a rehearing has been filed herein, and the main contention is that the judgment-roll in the case of Potvin v. Malanfant shows that the court never acquired jurisdiction to enter judgment in that action, and counsel contends that the affidavit and order for service of summons by publication are before the court and ought to be considered.
It is true the affidavit and order for service of summons by publication are contained in the record, but under our statute are no part of the transcript on appeal, and for that
On the trial of this case only the judgment-roll in the ease of Potvin v. Malanfant could be legally admitted as evidence as to the jurisdiction of the court to enter judgment in that case, and if the judgment-roll in that case contained papers not constituting a part of the judgment-roll, that court could not legally consider them nor could such papers be considered on appeal by this court. Section 4148, Revised Statutes, provides how the proof of service of summons and complaint must be made, and is as follows:
“Proof of service of summons and complaint must be as follows:
“1. If served by the sheriff, his certificate thereof;
“2. If by any other person, his affidavit thereof; or
“3. In case of publication, the affidavit of the printer, or his foreman or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the postoffice if the same has been deposited; or
“4. The written admission of the defendant. In case of service otherwise than by publication, the certificate or affidavit must state the time and place of service. ’ ’
It will be observed that the third paragraph of said section applies to the proof of service of .summons when the service has been made by publication, and it is there provided that the proof of such service is the affidavit of the printer or his foreman or principal clerk, showing the same, and an affidavit of the deposit of a copy of the summons in the post-office, if the same has been deposited. As the statute provides just what the proof of service consists of, this court is not empowered to amend that section, and hold that the proof of service of summons by publication shall consist of the affidavit and order for the publication of summons, in addition to the affidavits provided for in said section.