Pettis v. Johnston

-277 reversed, with, agent the trial court au- held thority Noah out as his .John county court stock, remanded to and the case and John sell his or cattle grant county, authority upon with directions to McCurtain him- of Noah not confer could Stephens’ agent by a new trial. mere- self or make himself ly saying larations, Evidence of his dec- he was. own HARRISON, RAINEY, J., PITCH- C. statements, admissions, dis- as McNEILD, JJ., FORD, JOHNSON, con- testimony tinguished as a from his sworn cur. alleged witness, not admissible principal purpose establishing, en- authority, larging, renewing can “nor his by showing authority his be established agent, have he the or that claimed to acted as JOHNSTON. PETTIS powers which he assumed exercise.” Opinion Filed June No. 9546 (2nd Agency Ed.} Mechem 285; Court.) (Syllabus Dry & R. P. Smith Sons Raines Co., Goods 37 Okla. Pleading —Construction—Exhibits. v, Bonner, Automobile Co. challenged pleading allegations aof Tlie this defendant was asked general must construed by connection demurrer question: “Q. you Do know who looked there- attached with the exhibits Stephens’ after A. Paul Yes sir. cattle? Op.) (See par. 13, to. Q. plain them?” Who looked Here Judgment Process—Conclu- as to —Recital objected tiff’s be counsel to the “as siveness—Record. ing leading.” The ob court overruled the. process ain of service 'The recital jection plaintiff excepted. The evi positively where it conclusive ment contradicted with the record sought questions propounded to dence the conflict in irreconcilable defendant as to whether not it roll, to the but resort generally agent the. known that Noah was John impeach recital of service Stephens handling of Paul his cat inspection of the en- the tire record—the Op.) means stuff, stock, par. (See tle. who looked roll. and other cattle, Stephens’ after Paul was inadmissi purpose, highly preju any ble Presumption of 3. Same—Collateral Attack — dicial, questions because the answers to these Process. only constituted evidence that about collaterally at- support '.of a suspicion even excite a Noah could had John indulged tacked, uphold every intendment will authority any agent Paul sell support it; thus if the Stephens’ authority Simply cattle. “look pro- service of recital is assailed contains longest after cattle” cannot stretch barren of evidence cess and the record 'ho issuance imagination imply authority then amount sell; presumed; general this repute will be service of presumption nor is that one agent stock, cattle, until over- stands handling for a farmer “in pdr. contrary. (See come during-the and other stuff latter Op.) evidence, life,” any of his to sell. Jones, Camden 189; Fire Ins. Assn. 53 N. J. Daw. Ree- of Process Shown t. Same—Kind Skyles, Moore v. 33 Mont. 114 Am. led. St. 801. If defendant had real evi positively appear If it agency, dence ready particular to show have roll served should mode, presumed; itself introduce it the trial case. of this other and different service say, record where the is to modify It intended overrule or par- positively explicitly shows (lie v Pender rule announced this court ticular conflict with of service irreconcilable kind Sogro, Bishop 318. 37 Pac. presumption of reasonable Drug service, -Babcock-Becker Oklahoma. Co. Estes the character of service then Valley and Midland wliicli is the one disclosed record Ezell, depend. R. Co. v. 129 Pac. 734. (See par. 11, Op.) simply supplement We rule announced exception: ap those If it is Evi of Process —Extrinsic 5. Same1-Lack parent general objection -could Judg Vacating Modifying dence— obviated, clearly or if -the in evidence is ment. any purpose, admissible more right . Relief based extrinsic evidence recognition as a favor than of a bad rendered without (Miller State, Lea, 224). may [Tenn ] process, under third subdivision service of of section notice it. clearly appears will no doubt do so empowering when Laws highly judg modify evidence was its own vacate or prejudicial. ments orders at or after the term at which . Oklahoma Equity. in made, of Attack —Bill judgment on account or 13. Same —Method such order judgment party, “irregularity obtaining- 2, Op.) appears or clearly of order.” a that a itWhen par. (See process, against a default whom served judgment, taken, face, has on its valid 6. Same —Time for Motion Vacate. judgment knowledge of such or no notice had until necessary extrinsic evi- be to resort to rendition, ox- years its from three judgment invalidity dence to for want vacate must following tbe of a siiow of service of years three a time before in too short process, motion to tbe party vacate, expired such file a motion to years presented three witbin plaintiff equity may to of such file a bill tbe rendition of tbe nullify, evade, the enforcement or restrain order, provided Rev. for section Op.) par. 4, (See judgment. (See par. 2, Op.) Laws 1910. Equity Showing of Same —Attack — 14. Remedy Equity. 7. Same —Exclusiveness of — Defense. Meritorious provided remedy Tbe third subdivis- tbe upon equity evidence based attack in An ion for Rev. vacat- Laws of'section invalidity of a tsie show record to dehors the judgment personal ing a rendered without over of want constructive service of is exclusive accompanied complaining, party equity years during of in tbe relief tbe three equity showing that such following less there be ular adequate. judgment, rendition un- of tbe upon which action to the defense meritorious special partic- in tbe reasons rendered; complained of was why statutory remedy tbe in- is com- tbe suit whether and this is true (See par. 2, Op.) expira- equity tbe or alter before menced years such tbe rendition of of three 8. of Same —Service Process —Extrinsic Evi- Op.) (See pai\ 5, judgment. dence. Extrinsic dehors the evidence—evidence of Relief —Power of Same —Conditions 15. judgment roll —is admissible to contradict the Court. return of officer’s service tbe recital of ana impose equity such condi- of A court (Nee judgment. par. 2, Op.) service judg- granting of relief tbe tions appear equitable face, as void its ment 9. Requisites— Same —Motion to Vacate — particular each of the circumstances under Meritorious Defense. provided for section case, also unnecessary vacate, It for tbe motion to par. 5, Op.) (See Laws 1910. Rev. based on extrinsic evidence of no service of process, plaintiff's show a meritorious defense to Sufficiency Evidence —Process. of 16. Same — (See par. a, Op.) suit. stability public policy, of solemn tbe Sound security courts, of liti- judgments tne Judgment 10. Same —Void —Attack—Limita- sworn gants return neither officer’s demand that tions. judg- nor the recital of A which is void its face aside or con- shall based thereon ment requires only inspection cogent, clear, except upon most tradicted ment roll validity to demonstrate its want of (See par. 7, Op.) convincing evidence. is a may judicial “dead limb tree which lopped any ; Rights off time” it Bona Purchasers. can bear 17. Fide Same — no fruit plaintiff, to the but purchasers prop- constant rights Tbe of bona fide menace defendant, authority erty vacated aof sold tbe by the rendering any it “at face, time on be affected on its will not not void motion of person prejudiced by affected vacation such either tbe thereby,” either before expira- renitermg it, after the judgment cree ing or a de- tbe court years tion of three from the rendition equity, evading, annulling, or restrain- judgment. void enforcement, Such unhampered motion is although ex- its further by a limitation (See par. of time. 3, Op.) tbe court trinsic show would want of sendee of bad 11. Same —“Void Judgment” Judgment Roll — (See par. process on defendant therein. 6. —Record. Op.) A is void on its race when its in- validity affirmatively Judg- 18. Same —“Bona Fide disclosed an in- Purchaser” — spection Plaintiff. ment roll legal juris- knowledge plaintiff, though sense the want of A diction invalidty unless its appears falsity return of officer’s face record; Smith, Op.) purchaser Edwards process, erty prop- is not bona fide Okln. (See par. 3, followed. sold under the aof him, (See for par. Op.) return. based false 12. Requisites Same —Motion Vacate — Conditions. Judgment It necessary to show a meritorious Lack 19. Same —Vacation support Right. of a Process —Extent of defense motion to vacate a

judgment, face; void on its nor can the court follow court declines to or adhere to impose any vacating (See holding judgment, conditions for it. decisions valid those on par Op.' face, pro- rendered without service v. Johnston in Affi- or, appearance va- Describe Land lie 25. Same —Failure cess par. (See Attack. davit—Collateral motion. cated at time on (in a real Op.) In an this case action rem ^ foreclosure), under sections estate Interest —Mort- Homestead—Nature 1910, against Laws Foreclosure-Necessary Parties. gage nonresident, in collateral 182, the omission to describe land jointly publication in fatal vested the affidavit is interest The homestead attack; Young, Okla. 24 50 benefit them- Ballew v. the wife for husband and the City Sparks, regard family, which to National Bank v. and selves spouse stead distinguished land; home- the and attachment to the the title owns 13, Op.) opinion. (See pars. 11 and of the Constitu- is a creature interest statutes, nothing known like it and Sufficiency of Affidavit—Recitals 26. Same— peculiar special law; and a it is at common interest choate interest vested right Diligence Serv- Obtain Personal to as to estate; in- a mere real not in ice. j spouse, become to in either by publication, joint other; al- An affidavit for service upon of the the death leging rights nonresident defendant is paramount the individual to the is plaintiff to is being incapable of the state and that either, .unable of division and wife, Oklahoma, is in of summons 'secure service it partition and between husband and allegation closely the additional sufficient without title the to adheres so cleaves and diligence obtain that personal exercised to cannot be dissoci- the land itself that to (See Op.) par. 12, by mortgage service. foreclosure therefrom ated either decree under a court to sale husband wife Op.) Sufficiency Notice of Publication 27. Same— par. 9, (See party. is not a Rem. in —Action publication to notice failure The Party to Make Husband Same —Failure 21. in in an action the land involved describe —Right to Attack Foreclosure of Wife mortgage to rem state to Judgment. mortgage, or to a real estate foreclosed is secured the note or debt wife, in state amount the homestead the owner of The mortgage, validity not fatal to may fee, judgment foreclosing on the and assail of a decree (See par. Op.) mortgage on attack. collateral a homestead husband, though ground not 28. Same. land, not was the owner of the title to rem, publication no proceeding in In a proceedings. party made a foreclosure to the general briefly in and terms tice (See par. 9, Op.) seeks, judgment plaintiff and nature of Judgment notice, Invalidity of and Sale. publication 22. attack the Same— on collateral z-equiredby the containing statute, inspection material elementó found it be if as sufficient proceeding judgment a the not be treated to foreclose will roll in a omitted therefrom uncertain and which is wife on husband and executed certain family homestead, reference was that the husband publication or- proceeding, or tne party affidavit to such foreclosure (See par. 13, Op.) iginal petition. void, although foreclosure the the in wife is owner the fee title Sufficiency Publication Service 29. Same— suit. and to the foreclosure homestead Judgment. —Validity judgment is A under such foreclosure sale hear The determine a and operate wife will divest the and ques- jurisdiction try all decide and way land, the title to nor including controversy, involved tlie tions the service of its affect the homestead interest of either the husband or pass sufficiency power (See par. Op.) wife therein. process; and the exercise Mortgages Action to Fore- jui-isdietion mortgages, —Nature to foreclose close. pass suffi- first district court ciency against a An non- action to a real constructive foreclose mort- estate gage and (See pars. and if 11 resident district rem. Op.) jurisdiction adjudges in the exercise of publication publica- affidavit for and the by Publication —Defects 24. Process —Service sufficient, tion notice rendered Affidavit Mortgage Notice—Cure Petition collat- thereunder held void Foreclosure. proceeding, enough eral against petition filed a nonresident publication affidavit and notice call for mortgagor a real estate foreclose mort- construction, ap- means construction gage pro- the initial link in chain of plication (See of the law to the facts stated. ceedings necessary pro- to obtain 13, Op.) par. by publication under section cess Laws resorted 39. Same. such initial link purpose supplying petition filing to foreclose mortgage, publication, defects omissions the affidavit for the affidavit publication (See publication notice, put and the notice. in motion the pars. Op.)' 11 and and the 78 Oklahoma freedwoman, Chickasaw her as a power pass invoked includes the thus pos in continuous has been upon plaintiff she is now sufficiency steps toy taken allottee, jurisdiction. (See pars. session as such is the 1912, to invoke its April, homestead; IS, family Op.) avers that Séeurity Company Loan & Farmers — Judgment Judgment Personal —Process court of district commenced an action Against Nonresident. husband, county her her and Carter personal A valid ren- cannot be mortgage exe Leonard, to foreclose a Isaac dered nonresident, cased on service land; fore that a them on cuted by publication. (See pars. 13, Op.) 11 and finding de rendered closure fendant and Isaac Judgment Attack —Effect of —Collateral husband Leonard were Success. judg wife, under that A successful collateral May 3, 1913, attack on a sold land ment the operate ment reverse, does aside, confirmed; $300, sale Cochran judgment; or vacate Cochran, plaintiff, deed sheriff executed that who merely Op.) evaded, (See par. 10, avoided or conveyed land to then her an attaches to Defendant Johnston. Judgment transcript 33. of of all —Nature Record. thereto swer an exhibit as preserved proceedings foreclosure in provisions A record under the of process case, alleges inclusive, sections 5144 ever that no was and Rev. Laws 1910, directing her, although the clerk record admits the order of the she served on shows to Isaac summons, complete court to cause same to return, every make a contrary; record of her husband. that finally as soon determined, as Leonard, was not served petition, contain process, “the attempted of sum service that pleading subsequent thereto, by void, and mons him was on reports, verdicts, orders, judgments and all her husband not a that material proceedings acts and court,” pur action; further, foreclosure chaser at the foreclosure sale never that equivalent is mon upon roll at com- paid the law, signified parchment a roll of consideration, got deed fraud. proceedings which the and transactions authority Under the of section of a court were officers, entered its Kilgore. in Laws 38 Okla. construed Ewers v.x deposited which was then in the court’s treas- ury. perpetuam certified (See par. rei memoriam. M, Op.) to the district where the transmitted plaintiff filed to the defendant’s a demurrer Authority Judicial of Officer— Sales— The court the demurrer answer. to all ing sustained Procedure and Terms. part alleg of defendant’s that answer An selling officer property under a court was served on her in the that property decree can sell such terms, on such case, that actual or only, such provided terms constructive, on was served her husband in decree and the governing law force case, purchaser’s the foreclosure deed was void because he failed to sale, that incorporated which is into and made a pay part decree, and an officer has no Upon ease, consideration. a trial credit, to sell on accept or to payment anything plain of the bid in favor of was rendered other than law- money, ful unless expressly appeal tiff, her defendant on to this otherwise author- ized ing the decree govern- or the law in assigns force error court district court the action of the (See par. such sale. Op.) sustaining de murrer to her answer. . Error Court, from District County; Carter Freeman, Judge. IV. F. Guy plaintiff Stigler, H. error. Becky Wheeler, Action E. Johnston B. J. in error. T. defendant Bettis for rents and foreclosure of landlord’s lien on RAM8EY, (after case). stating J. crops. Judgment plaintiff, find transcript the record the foreclosure brings defendant error. Reversed. answer attached defendant’s Johnston, plaintiff showing below, summons, defendant thereon the contains jus personal error, service on defend- before a Becky Pettis, officer’sreturn of ant; commenced this suit peace also the foreclosure contains tice money on judg a recital summons defendant. error, plaintiff to recover a landlord’s and to foreclose ment rent in the is: Gan the recital 1. The first crop. Among cotton lien defendant’s on personal foreclosure process plain things in defendant’s answer ex- on be contradicted defendant plain particulars, she denies bill of ownership tiff's the record? trinsic dehors evidence—evidence majority says great Cye. 1086, the land described tiff’s possession re- that the the rule owner sustain that she decisions avers same; in a allotted domestic land was citals of service Judgment attack, a direct jurisdiction be shown lateral attack,” on which is found- its admissibility import verity and sustained ed con- .of absolute and cannot disproved a false pro- prov(6 extrinsic evidence tradicted or in a collateral ceeding scheme citing of a fraudulent evidence; return was extrinsic course, jurisdiction long Of on the court. list confer of state Black and federal cases. equity (2nd Ed.) extrinsic evidence to show that admissible re- Judgments judgments says recital of service ferring to domestic that ‘'the great majority return based a fraudulent decisions hold procured false re necessary —where the shows the facts to con- record judgment upon turn edge knowl jurisdiction, or took a it with fer or reciites that false, attach, Mis it was as held did in fact are final and averments Supreme Judd, every souri Court Smoot v. conclusive in collateral Seeley, v, S. W. New River by any Co. cannot be contradicted Mineral extraneous County Fed. Knox Cyc. Judg- Harshman. evidence.” and Black on (2nd 133 U. Ed.) S. 33 D. Ed. v. Rob 275, say Walker ments vol see. that in bins, (U. S.) 584, jurisdictions, Georgia, How. 14 D. Ed. Arkansas, other sota, Minne- Lauenstein, Miedreich v. 232 178 Mississippi, Nebraska, York, Ohio, U. S. Caulk New Lowe, "Wisconsin,Illinois, Tennessee, Colorado, import the record does uncontrollable Cosby, court court Crist v. verity when the want of is al- “when the held leged, permissible to contro- this finding personal record contains due point vert the recitals the record defendant,” it service was miade by party aliunde; always open to a questioned in cannot be conclusive and jurisdiction by producing to contest the injunction And that the “find action. parts positively of the record which ing adjudication prima facie evi judgment. contradict the recitals of the One summons, legal of due and service of dence of the discussing ablest decisions the admis- presumption raised cannot be thus sibility of extrinsic evidence to contradict by allegation overcome summons was not served until the that: “No record rule, of the fact that the judgment recitals of Fergu service days four Crawford, son 253, v. 70 Y.N. 26 Am. further, and, judgment .rendered”; was can contradict dissenting opinion Judge also the Yal- that the one (Mo.) liant in Smoot v. Judd W. 83 S. actually avers, and were not this the See, also. State Ins. Co. v. Waterhouse greatest prevail. the confusion would (Iowa) 43 N. W. 611. little, any, solemnity There would be if court, judgment great Ray Harrison, the This court the and a mul 32 Okla. 17, tiplicity of would admissibility suits the rule.” sustained of extrinsic evidence contradict an officer’s return to. Bank, 70 National Union In Bausten personal service, and likewise that reaffirmed 823, that Oklahoma, it is hold Pac. Jones, doctrine in 442, Jones 57 Okla. upon which affidavit of the truth cases, Pac. 1136. In neither of those how chal- “until immaterial is based ever, appear judgment it that does in proceeding recognized legal lenged in some volved contained recitation of service. judgments,” and of valid vacation Getzelman, In Oklahoma, Bruno v. face, that, on sufficient the affidavit 850, plaintiffs commenced an action false, judgment was Pac. in true or whether ejectment to recover 80 acres land and regular its face. and valid sought to set aside two Dow & Lumber Co. In Wheatland Grain judgments ground on the that had defendants den, of the 26 Okla. some not been served in either case. This court summons, an at with not served were torney employed adjudication jurisdic said that “An of the represent part of judgment domestic tional facts clusive in a collateral is .con appearance for all the entered defendants proceeding attacking any pleadings defendants, to file but failed judgment by attempting again put such each facts he was whom those defendants issue,” Blackwell cited judgment attorney, de was entered McCall, Daugherty 54 Okla. them; they motion filed a fault vacate attorney Feland, v. tinental Gin Co. v. 59 Okla. Con ground judgment that DeBord, No represent them. had no Harrison, Ray reference was parol ad was evidence This court held that supra, Jones, .supra. or Jones v. attorney no that missible to show authority, had Culp, vacated, judgment In Griffin ordered necessary saying 'that “in de this court said the case of a for the that was it juris- general domestic diction, a court of to show not served fendants defense, they want of and an ordinar- meritorious cannot that had a ily judg- syllabus shown extrinsic in a col- nounced in that “a 78 Oklahoma vacated, motion- appointment lime given of quired by re- ment by was notice thereby person affected Rev. Laws same -the or other a- defense.” is conclusive on collateral attack.” up setting a meritorious parties litigation third DeBord, Okla. That was a between Gin Co. In Continental contract, specific performance of a finding court 10. whose held judi- incidentally involving validity de- “the assailed arose over the attor- cial decree. issue person appeared fendant ney” plaintiff tendered or not the whether as a merchantable title. impeached. That case cannot be finding It was not suit here, point hardly equity ground against the on the the appeared in for relief defendant the court physical obtained without finding judicial person based ais process, nor it a motion obvi- eye facts under ously 3,of Harshey subdivision Thus, vacate impeached. cannot hereinafter Laws Judge section Iowa, 161, Dillon Blackmarr, 20 discussed. de- finding by a court said that a attorney could appeared by a certain fendant bo authority, McCall, 96, it is 54 Okla. In Blackwell v. attorney by showing no had impeached said that— entry been “Had but said: Perry jurisdictional adjudication facts “An of the personally court into L. P. came in a in a collateral conclusive domestic process, have it could not and waived attacking- such appearance coun- But the controverted. again put attempting facts ment authority to waive sel or to defend bo v. had who in issue.” Perry, P. for L. suit was a suit the district That Thus, Blyth Fargo explained.” Co. & agreed expressly judgment. It was aside that Swenson, Utah, purchasers had involved the land defendant held that recital therefor, paid with- consideration valuable appeared by appearance attorney is conclusive plaintiff’s claim that out notice of the attorney, -but not conclu- record former was void. The attorney’s authority, ho sive service. the former showed authority, then would bo set aside. great number Prom an examination of adjudi- authorities, including text-writers Woolery, first Rice v. majority on one cated find side says: paragraph syllabus casesywe holding recitation of service of decisions in a contradicted th-et of a domestic “The decree eollaterally domestic cannot jurisdiction reciting geñeral the that court of evidence, although by extrinsic duly summons with defendant was served of such recital be overcome days -prior the date of than 41 to for more pants roll in irreconcil- of the warning publication order of the trial the cases, In the able conflict therewith. law, required by on collat- is conclusive as judgment a sustained, is not decree attack, contradicted and cannot he eral without and law rendered notice proof.” extrinsic good, without service but because the an an- to demurrer That decision onwas permit does the not introduction of publication averring notice that the swer which, pub- to of overthrow that for reasons suffi- against not for a a nonresident was policy, verity. lic on it treats -as Black absolute answer, length to which time. The of cient Judgments, 1, sec. Lancaster sustained', appears from the demurrer Wilson, soning (Va.) 629, 27 Graf. rea- states the by the Dunn to Justice of the ease statement the line of of decisions about as publication merely alleged “that have clearly ginia as we have The Vir- examined. give court to of the sufficient law not says judgments if court were person jurisdiction always open attack, they to collateral would sought Rice, af- estate or the Parris longer adjudication a “no final ; of before the notice fected not for tlie An rights litigants, starting point of but the from day.” statutory time answer litigation spring up; which a new would acts analysis of that case shows the admissi- nuga- of limitation would become useless bility evidence to contradict of extrinsic tory; purchasers judicial on the faith of involved; Justice Dunn mere- record was not protection; every right would find no ly -of recital service was conclu- held by judgment established and would be insecure sufficiency adjudication of the of sive publication uncertain; cloud would rest proceedings. every title.” Theimer, In Rice the fifth The proceeded common-law authorities says: syllabus paragraph of the court from the earliest times to hold that probate import “Where the c-der memorials of courts the most abso- appointing guardian in the order recited lute and verity; uncontrollable that the rec- 283' speak guarantee always and cannot which contrary, truth ords contradicted That it every inviolability man’s inspection. gives except by law own their rights its best constitutes largely and estate originated holding no doubt respect confidence to the title the common-law reverence for fetish True, people. who is ment person, late which defendant is said law common The roll at courts. injured by rendition of physical judgment roll—the was as a proceedings fact him beginning the end from the appel- procure in an reversal its parch- originally on a roll of were ment. further entries were made transcribed it in the court to vacate or move steps case,, in the were taken As new equity it, go with rendered upon this roll. injunction. application no this for an But judicial in that are not records America But adequate safeguard. are These remedies preserved kept great care illusory. very possible that For it is often displayed by entirely ignorant common-law caution the old he adjudication against remain England. long courts question that side until On him irrevocably rights sec- lost. find the federal cases. Walker are we bis jurisdiction, place, if had no Robbins, 14 How. ond 14 L. Ed. Knox void; proceedings action County its Harshman, 133 U. S. L. Ed. void, of that its memorial court was of the action in a Lauenstein, Miedreich v. 232 U. S. put argument is no record. Givens, 684; Bigelow Foster v. Fed. early very light York in an New clear Ghatterton, Cronkite, 51 Fed. Walker v. judge, speaking case, an learned where the Stewart, Lathrop 40 Fed. Fed. following alleged record, lan- used 8112; Sargeant Cas. No. Indiana State said, imports perfect verity, guage: it is ‘It Bank, wishing 21 Fed. Cas. No. 12360. One parties cannot heard pursue this line of eases should examine appears impeach to me it. It (Mo.) Smoot Judd 83 W. S. well very es- proposition fact assumes the Cyc. 1086, as the cases in 23 cited Black question tablished, sue. For what question to show are only in is- which is Judgments (2nd Ed.) purpose vol But defendant does the unnecessary Solely examine and all the the that court? cite judgments discussing question. We have void, supposed record theory and therefore they rest, stated the defendant record. truth a is had public policy wit: That demands thait ap- of, proper notice did juris judgments general solemn courts action, pear to, original all 'the depend shall diction not be made to for their opinion exception, agree courts, that with one stability permanency upon any other evi paper is nó him introduced dence than the written of' monuments their show, record; the even but if he cannot jurisdiction preserved roll alleg- fact, pretended record, itself. verity ground uncontrollable ed record, profound deprived of his defense With deference distin- my guished reasoning mind process little line, courts that side of the plaintiffs sophistry. than great public with importance less solemn realization paper defendant: declare to the effect possible you says record, because a declared consequences admitting of extrinsic evidence you appeared appeared, paper a because and -impeach to judgments courts, the solemn of reasoning in This is ais record. cases, let us turn to the other line of not for appearance record makes the circle. purpose compiling numerically, of them verity, makes the record and uncontrollable purpose but for the examining of the reasons unimpeachable appearance fact. upon contrary. they holding which their to base puts in the defendant fact which (2nd Judgments Black on Ed.) record, validity is the issue sec. 276 underlying states the reasons estopped yet he is is contended opposing line of authorities with such very unimpeachable of credit vigor quote force and says: that we it here. Black any allegation disproving one from record - juris- a court in it. Unless contained “First, which diction, a record make never it can of natural justice verity to the imports to the individual. To a uncontrollable suffer man jurisdiction, unheard, permit usurped to be condemned to him whom it has over deprived property estopped, rights by be of his ought or his not therefore to he record, proving of which he had no allegation notice or in any in that opportunity heard, which he goes of establish truth fact that every repugnant to of jurisdiction.” sentiment plea alleging fairness of want dealing, right wholly as well as alien to the composed Certainly states 48 in a Nation jurisprudence. spirit of our To sacrifice the super-state, government, federal and each community individual is no doubt a welfare of the solemnly guaran- with a Constitution very principle political high pur- life, liberty, teeing ethics, scarcely body but it is at home happiness, rights law, a citizen’s should except suit of police. of our in matters of On 78 Oklahoma judgment under never be foreclosed notice solemn acts federal without without dered hearing. Rev. Laws Is it true third subdivision section Legislatures 1910,empowering modi the court to state vacate by fy Congress judgments at or after be stricken down its own or orders can judicial they with term or order decrees because conflict the was which such at made, prohibiting “Irregularity tak- constitutional ing on account of in ob limitations law, property taining under presented without due or order.” Such motion yet savings a citizen's of a lifetime can section Rev. Laws must and be impounded judg- years rendi execution on within three after the wholly ignorant ment which & he was or order. Canadian Mortg. opportunity which he had no resist? To A. & Tr. Land & Inv. Co. Clarita (Cal.) 301; People illustrate: A citizen hard labor and econ- Co. 74 Pac. rel. v. ex omy keep up enough away Temple (Cal.) 414; has laid Le- Scott v. inability age; realizing 481; Ballister, wolf in ICohn old Wash. government wholly protect 577; Haas, him from v. Ala. State So. thieves, burglars, 291; 'highwaymen, Court, can v. District 38 Mont. n crib, doors, Johnson, 247; lock his bolt arm his him- Johnson 40 Ala. Wheatland personal violence, 441; yet Dowden, self to terly helpless ut- resist Crain & Lumber 26 Okla. Co.v. rights against Co., to defend Nicoll 591; his v. Midland & Loan Okla. Sav. upon 88; Stonebraker, a false of an Baker v. based return Howard, law; taught officer of the he has been from Richardson v. 51 Okla. early property liberty Akin, childhood that neither nor Pac. Pac. his Frost v. 60 Okla. Gillett, Harding can be taken from -him under the 25 Okla. judicial Still, sanction of a have had an Ozark decree until he shall Marble Co. v. 24 Okla. opportunity Hockaday Jones, to resist in a neu- 8 Okla. Dane v. (Wash.) tral forum the demands and Daniel Wolcott, claims of those Hansen v. despoil yet him; Haynes, who awakened suddenly seek to Kan. he is Leforce v. property find the sale all Nat. Bank Grimes First restrained, Dry under an execution cannot be 45 Kan. 26 Pac. 56. Goods public policy necessary he- must it be to resort to extrinsic demands that invalidity judgment, sacrificed the altar of of a the uncon- show the sanctity verity judicial presented trovertible of a the motion to vacate in with- knowledge following years decree of which he had three the rendition of order, every judg- which he had no means to resist. We cannot otherwise ment, point bring adopting unqualifiedly record, ourselves to face of valid depend perpetuity upon rule the frail closes truth, hope memory light door of and shuts out the of man. We refuse to follow those prefer go Illinois, holding Mississippi, apparently We that a Arkansas, Tennessee, Alabama, Iowa, process, though New rendered without service Colorado, Texas, states, face, may York. and valid on its be vacated time along great with the text-writers on motion. Those cases rail to distin- Equity Jurisprudence. guish judgments ments and between valid As said face their Coke, judgment ought Lord void to be and those on their face. See Edwards “the very right.” holding correctly voice of law and Smith. 42 spnse legal “a safeguards Fortified with the hereinafter want of iurisdicfion unless its invaliditv defined, public policy we believe the ends of on the rec- and want of iurisdiction anoenr fully justice will be satisfied the ends of merely.” ord if is voidable : by admitting met evidence to con- extrinsic statutory during remedv three judg tradict the officer’sreturn service and the when the of service, following years the rendition of recital in a equity, ment is exclusive of relief unless eleagly, cogently, facts and circumstances special particular ease reasons satisfactorily demonstrate 'that it would remedy why statutory inadequate. permit judgment be stand to a to unconscionable Akin, 174, 752; Frost v. 60 Okla. 159 Pac. against party a who had no notice of Proc., 277; Cosby, p. 15 v. Standard Crist opportunity the suit and no to defend his 635; Court, rights. 11 Okla. State v. District 38 291; Smiley, 166, Mont. Okla. 99 Pac. Harris v. 36 undertaking Without to harmonize the de- 89; Mfg. Sleeper (Kan.) v. Gale Co. cisions of this the conflict more 79 Pac. 648. apparent real, lay than we now down fol- Extrinsic is admissible to contra- lowing evidence state, as the correct rules in this to- dict show the officer's return to wit: -process defendant. was not served on n 2. Relief based on evidence dehors the Wheatland Grain & Lumber v. Dowden. Co. against judgment record 441; be had a ren- 26 v. Okla. First National Bank Grimes 285 481; 56; LeBallister, 5, 510, Pac. White Dry Co., Dane Wash. 79 Pac. 37 Kan. 26 Goods 45 Rep. 732; Ladd, 324, Blyth (Wash.) 446; & Am. v. 41 93 St. v. Ore. 68 Daniel 88; raker, Utah, 345, Fargo Swenson, 49 32 Okla. Baker Anglea McMaster, ing v. Stoneb 15 Co. v. 501; Spauld Temple, 1027; People 103 v. Pac. Cal. rel. v. ex Chapin (Cal. App.) Lugo, 334. 414; 174 Pac. 86 447, & v. Reinhart v. Co. 37 Pac. judgment Rep. 52; A he vacated 395, Platts void on its face v. 21 Vilas Cal. Am. St. length upon motion, time burg 20 matter Y. what 123 N. & Montreal R. rendition; interposed Rep. 771; Taylor neither since its State has is it meritorious Am. v. Granite St. any necessary Ass'n, to show Am. St. for the movant 136 N. Provident Y. defense, im Rep. 749; Gunz, nor Minn. can Heffner v. any ; pose vacating 342; Spencer, it. See Tex. 155 12 N. Parker conditions v. W. 481; long Furman, (Wash.) Furman v. list in annotation'to 79 Pac. Scott v. LeBallister Rep. 642, Blyth Oklahoma, Culp & 174 Pac. 60 Am. St. Griffin v. Hanson Bank, etc., Arthur, Savings Fargo Swenson, Utah, Wolcott, Co. v. 19 Kan. Hardeman, 14 How. 53 N. W. Harris v. 52 Minn. unnecessary Condit, L. Ed. 168 Pac. 812. for the motion Condit And it is supported to show 456. vacate to be answer ing a meritorious defense. Wheatland -clearly appears party a When it Bowden, Grain & 26 Okla. Okla. Lumber Co. v. process, against whom not served with Still, 24 Marble Ozark Co. face, judgment, has' valid on its default Haynes, 25 190: Leforce v. knowledge taken, had no notice or Savings Wolcott, Hanson 19 Kan. years judgment such after three until Arthur, Bank, etc., 812; Minn. N. 53 W. Ency. (15 Pnoc. its rendition Standard Atchison, etc., , R. Co 97 Norton v. Cal. p. 275), short a time before the too 388, 33 Am. St. expired years three to file a motion to va- cate, may plaintiff, equity actual himself of A reassure file suit enjoin personal service, fails of such when defendant enforcement appearance judgment. referring the first sum- We a case where enter his are served, may upon extrinsic service of relief relied show no returned the officer mons summons, provided and returned issued the ultimate have another summons by depu- the sheriff’s member of not barred some other statute different ties, limitations, any, question take default if which we before put considering. ment, record into the means now are not evidence of service. cumulative Cyc. 996, says: People Greene, 74 Cal. As said “Equity may enjoin vacate which is void 16 Pae. “a legal defendant an action of which bad upon inspection requires only an assuming its face notice, on the trial court strength want to demonstrate its roll of a false return of judicial upon process by vitality, Ear- sheriff or officer. a dead limb tlie only party’s holding power lopped off, lier decisions remedy tree to plaintiff, which should the officer an action do exists. It can bear no fruit to the so rules.” modern are inconsistent with the but is a constant menace defendant.” 5274, section Under clause of The law stated Freeman on is thus providing “a Rev. Laws 1910. Judgments (4th Ed.) sec. 495: judgment may any be vacated at time void pronounced .service “A person on motion affected constructive, process, with- actual or of out the thereby,” void its face knowledge that a court defendant’s be vacated at time the court render rights, adjudicate bis asked had been is variety there courts it is (Arnold Joines, ing such regarded at law disfavor 130) ; writs, motions, are and. as said many it; (Kan.) provided Gille Emmons overthrow “the upon all occasions all times and (is) hampered by a limi having entirely disregarded upon liable to its tation of A time.” jurisdictional infirmity exposed. But appears inspection when it so face appro- peculiarly equity proceedings in roll, will not held void infirmity. exposure priate They permit the on its face unless thereof affirm the record formation of issues atively juris shows the court was without -and of service diction render it. Canadian & A. opportunity has full issues trial of those Mortg. & Tr. Co. v. Clarita Land & Inv. a§ given sustain who seek to been well If at the those (Cal.) 301; People Co. 74 Pac. ex rel. v. judgment. to avoid those who seek 414; Temple Whitney (Cal.) Dag 37 Pac. v. satisfactorily appears trial it . 471; gett (Cal.) People 41 Pac. v Davis no had summoned defendant was not (Cal.) 651; suit, 77 Pac. v. State District shown . excuse is notice sufficient 166, Scott, Court, defend, equity 291; neglect will Mont. 38 v. for his Oklahoma 78 286 satisfactory impeach it, clear unjust, judgment, to be used if allow against (Emphasis ours.) produced.” must be jurisdictional him, matter no what ours.) (Emphasis it contains.” recitals of the text-writers A careful examination the decided us that eases convinces and' 377, Judgments, In 1 Black sec. on supports weight the view

law is thus stated: grant equity from such will relief modern judgment. judg enjoin “Equity may vacate or R. Et. Smith Rock & See Little ment of a shown court when is law long 216, Rep. Wells, 54 St. Co. v. Am. unjust, rendering be it1 and that court 296; Proc., p. 2 annotation; 15 Standard jurisdiction person never Ency. Eng. 887; Story Eq. Am. & sec. Jur. defendant, although assuming in conse Inj., p. High Ed.) 16, 388; (2nd on vol. Law vol. 631-633; 47, quence of a false return of service Inj., 1, 1, 222; Joyce secs. on vol sec. sheriff or other officer.” Temple, People Cal. 103 ex rel. v. Pomeroy’s Equity Jurisprudence (4th Ed.) Ed.) Judg. (2nd 414; 37 Black Pac. 5, 2084, says: vol. etc.; 376-377, 1, West Great 348 and vol. sees. Co., 46, Mining Am. 13 12 Colo. Min. Co. v. many equity “In cases courts of will inter- Rep. 204; Gregory 4 & St. Johnson Am. prevent injustice fere to when a court 907; Rep. 109, Metal Nat. 31 St. Wash. jurisdiction. law has acted in- without This S.) (N. Co., L. A. Consol. 9 R. v. Greene Co. 1062 inequitable terference is based on -the results Crouter, (Ariz.) ; Huntington 33 Or. follow, frequently wholly which pendent inde- Humberger, Rep. 726; 408, 72 Hilt v. Am. an.y St. wrong of thie Knight, 304; 235, prevailing E. Hamblen v. Ill. 85 N. party 235 One of the commonest il- 488, Stein, 150 Neb. juris- Larr 97 lustrations 60 Tex. is found in cases no where Mfg. 655; Campbell Oo. v. & diction has Pt. Press N. Morden, obtained W. because there been rule 573: Am. process. no service of St. summons 50 Neb. The Luncspi Gerdine, Hanswirth seems to toe Miss. 'that the failure to where party serve swer, inability Sullivan, results in his Vaule to an- Mont. v. Miller, long granted. also, point 452; see, relief On tbe N. W. 69 Minn. to whether a toy Judge meritorious must be defense Valliant list of eases cited shown, the question courts are divided. opinion The dissenting Judd in Smoot v. his is paragraph. length discussed more subsequent at in a (Mo.) W. S. The defect in equity appeal The apparent record, or, again, the rec- (Frost legal on.inadequacy remedies based v. ord itself jurisdiction. show the ivant of 752), we Akin, In the former ease the arises toas just seeking relief that a defendant think it whether a return can be attacked. It was equity formerly their obtained in a court held common-law courts that required judgments purported should without service of to is, verity. aDsolute That good action. defense depended show a the false return to show officer seeks defendant where the party injured rec dehors maintain could extrinsic evidence—evidence against an action officer, out he could rendered— in which ord be relieved judgment. from the The him, modern must was served no that show his equity cases greatly have ameliorated this good equity had a bill doctrine, harsh safely and it can be stated against claim defense general rule, by that thority, weight of au- equity was law or at which the th'at return be attacked in authority on There is conflict of based. an action judgment. to set aside jus- The agree line question, we this cases requires tice of this argument. rule good holding defense remedy a at law an officer is at best of f very a default to avoid character, shown order many doubtful and in Cyc. applied equity relief. damages, quate recovered, when wholly are a inade- Ed.) Pomeroy’s (4th vol. Eq. remedy; p. example, Jur. where the action recovery Little, (Wash.) courts, of land. Brandt Some sec. 765; however, Ed.) (2nd have Judgments down the rule that an laid Black on 262,- officer’sreturn cannot pp. Proc., toe attacked unless it is 15 Standard secs. wilfully procured false and has been eases; long Pruden list of plaintiff at law. The effect this is to make (Ala.) Kerr, 80 South. Casualty Co. v. tial 97; equity basis of action fraud 670,13 Taylor, South. Miss. Newman injured law. The must, if Oldham, 18 S. Tex. Anderson shown, depend fraud be remedy Jones, Hockaday W. everywhere the officer. It held, says where the the supra, in cases Pomeroy, however, prima officer’s return is ground equity is on attack regularity. evidence of facie in a rendered default must find that there has summons, no service been due there service. finding pre- will be good prevailing that even view sumed correct. Therefore, “the in order to 28V Johnston property purchaser of a bona fide title of and sold under ment. defense Not merits must be shown." judg such of only party against must the whom the default (Mo.) 83 S. W. v. Judd judgment In fcimoot has been taken without service opinion hold 481, ing in an elaborate summons, of when he relies extrinsic public policy introduc excludes the judgment evidence—evidence dehors the roll impeach the prove tion extrinsic of jurisdiction, —to meritorious guilty the want of show a contradict of service return defense, officer’s recital that sheriff’s sale but he must not be judgment, -also hold of negligence. service of laches or Annotations purchaser a- at -as title Rep. 640; in 60 Am. St. Nat. Metal Co. v. property on the defendant’s of (N. S.) Greene L. Consol. 9 R. A. judgment was Robins, based on such an (Tex. App.) Fox 815; execution Civ. 62 W. S. plaintiff purchasing Owen, valid—that innocent & Ind. L. Tr. Co.v. 63 Oklahoma. knowledge had nq he officer’s Hargrove, Harrison v. falsity We return. of of the disagree party applies equity, N. C. When such were Courts with conclusion. equity, he must offer to do and where there .plaintiffs, primarily and not long lapse appears been a has of time it qualified defendants, sense certain plaintiff the innocent default ir sponsor plaintiff errors and for the is judgment placed disadvantage case is at on acting as regularities a court committed delay, weigh account of the plain rights. agent is the It his tiff’s to enforce his equities corresponding par- between the fact is in to see business ties, appears and if it that the cause action of rely right and, served, while he has plaintiff judgment of the to the default service, machinery law furnished the he, machinery safely. limitations, barred of a court statute if the suffer not equity may require of default the defendant the the puts work does motion judgment plea waive the of persons innocent two Where one of limitations, parties statute of so that the third, he who has the act of must suffer enabled proceed possible litigate nearly as -person loss to occasion the such third original of the action issues as of date Hibbs, Dep. Nat. Co. Safe. must suffer. 229 rendered, default which'the plaintiff not the 391. Whether or U. S. required pay knowledge falsity of the of had the notice or Proc., p. advance. Standard 272. It service, occupy never of he can return equity well settled of that a court will admin judi position purchaser under a fide of bona exigencies par ister such relief as hijn instituted cial sale in a demand, ticular- case lief are not fixed remedies to meet the conditions its re modes of Joines 50 Okla. Arnold v. rigid. It can mold its Ogden, 22 Hubbard Kan. which ii with Judd, supra, it is said that In Smoot deal, equity being plaintiff, though a fraud would by legis domain conscience whole limited falsity ignorant return the officer’s only.” lative Graselli enactment Chemical return, take its time of Explosives Co. v. Aetna Co.. Fed. the defendant Y) default Pdoomquist Farson, (N. 118 N. E. 855: falsity knowledge at the time of its with (Me.) Thatcher Thatcher 515: Atl. rendered, such and that under T.) Sugar Refining (N. Earle American Co. facts, have re- defendant could Ed) 391; Story's Eq. (14th 71 Atl. Jur. very equity. mar- narrow There is a lief in equity may sec. 578. And a court of im plaintiff gin claims who between pose provided all the conditions sec false on a return based fruits of Rev. Laws 1910. service, a de- who obtains 6. We reaffirm the doctrine of Edwards knowledge falsity fault Smith, 544, holding judg- that “a In the absence of the return. of the officer’s legal ment of void sense for want extraordinary -appealing most strongly circumstances jurisdiction, invalidity its unless and want chancellor, conscience jurisdiction appear the record: permit plaintiff in this we hold on to a turn state to will not merely.” doctrine, voidable well a sound re- based a false supported by ad- text-writers and But, officer. Boone v. as said judicated cases. While extrinsic evidence— purchasers Chiles, Pet. fide 10 (equitv “bona n admissible, dehors the (cid:127)evidence record —is court’s) especial are its favor- most support a motion to either ment, tion, vacate property purchasers ites.” sold Bona fide years face, filed three its rendi- within under a not void on its support equity définied!, of a hill filed at protected against herein either a motion to vacate or will be time, of in to contradict officer’sreturn equity a bill in ’ or the although recital of judgment, service tlio if sense that it to annul or evade such judgment, judgment, that, nevertheless show extrinsic evidence would the offi- face, legally false, valid cer’s return of service summons was ¡hn( basis cannot nrocess the recital service of in fho Oklahoma 78 288 out, pointed public policy, stability those of sol As 7. Sound the was untrue. security courts, judgments excluding show emn of extrinsic evidence to the courts want of litigants jurisdiction of for lack service of that neither officer’s of demand the so, process, with- sworn nor the recital pot do return of service because public policy judgment good, or thereon shall be set aside out based service except upon permit will evidence introduction extrinsic the most satisfact the contradicted ory clear, wbieb it treats evidence". must be to overcome cogent, convincing, verity. and, Koch absolute we do not subscribe as said in While “Every public (Ill.) 1047, policy the mau N. to the doctrine that door closes v. O’Neill 66 E. indulged, absolutely presumption all at times the in favor of the return impeach introduction of and it roborated sex-vice can be set aside uncor extrinsic evidence will not service, testimony party upon return of or the recital whom officer's purports judgment, Nor service we do hold that to have been made.” public policy making door shuts the such ex- the officer retui-n it. traneous evidence when admit it will strike was rendered contradict rights parties. Geidine, down innocent A Duncan 59 third v. Miss 550. As said purchaser ings ment, party Collins, proceed- 231, Randall like an v. 58 Tex. who “It ordinary beyond fact, is not bound look issue of to be determin preponderance necessary give testimony.” if the facts a mere ed See, 891; appear also, Quarles pro- Hern, face v. 70 Miss. Childress, ceedings. (Tenn.) 247; If Hunt v. 5 Lea has been im- U. S. providently Gayle, 107; exercised, Cobb, it is v. v. 1 Tenn. not to be 45 Fed. Driver corrected 490; expense Ray Harrison, 17, at the Ann. of one who had Ch. 32 Okla. rely upon 443; 1914-A,p. Jones, order Cas. the court Jones v. as an au- thority emanating competent 442, 1136; in 124 from a also annotations source. 5176, Rep. beginning 770; see, 1910, page Section providing Rev. Am. St. Laws 275, any judgment Kemper also, Jordan, App. if any “in 7 Tex. Civ. satisfaction of which sold, 870, (Tex.) lands or 26 tenements are S. W. and Becker v. shall Becker at reversed, holding testimony 542, time thereafter 218 S. such W. reversal shall chaser pur- not defeat affect officer met must be the oath of wit title two purchasers,” strong exactly ap- while not nesses of at least one with corrobor plicable pression this, ating statutory ato case like is a circumstances. ex- public policy If this state. Defendant, howevei-. insists that purchaser judgment, under'such not void face, be foreclosure cause her party is void on its face, on its falsity had no notice of the husband, Leonard, Isaac not a officer’srelurn or the recital of suit; wa.- rhat the land involved judgment, pays consideration, a valuable family homestead, husband that the (he relying upon record, rights face indispensable party was an to the foreclos superior to the defendant’s. See Harri ure action him before the court Hargrave, son v. 96, Rep. 120 N C. 58 Am. St. the foreclosure and sale thereun 781; Shonwald, Sutton v. 198, 86 N. C. 41 Am. appears inspec der are void. If from an Rep. 455; Dresback, 393; Davis v. 81 Ill. tion of the roll in the foreclosure y. Wilson, Dunklin 64 Ala. Wilson v. Leonard, husband, ease that Isaac (N. Eq.) Hoffman bins, dy J. 50 Atl. Fox v. Rob party, not a then so far as he the void (Tex. App.) Civ. 62 S. W. Cassi- judgment, is concerned is a within the Time-Stamp Co., Automatic 431, 185 Ill. meaning 5274, 1910, of section Rev. Laws 56 650; Kennedy, N. E. 643, Reeve 43 Cal. may ignored aside time. Geddes, Stokes v. 46 Cal. v. Hilt v. Friebe Elder, 597, 181 ; Ind. consider the 105 can N. E. Before we Heimberger, 235, awas 235 Ill. husband E. to whether or to that case tual or whether N. Mc McClure, Cormick ac- either Blacxf. 39 Am. 17 Am. ; Taylor necessary constructive, 441 Boyd, Dec. Dec. 15 to decide Ohio, wife, Sternberg, Gould owner of or not 128 Ill. question. fee, Am. 138; Reynolds St. raise that can homestead v. Harris. 14 Cal. Hudepohl Am. Dec. Ann. Okla- Williams’ v. Lib Section 2 of article erty Constitution, family Hill exempts Water home- Cal. Am. St. homa Rep. 149; payment Allenberg, sale, Macklin “for the 100 Mo. stead from forced money Ray purchase there- Harrison, except debts, S. W. Okla. money, plaintiffs purchasers purchase were such for or a the' Subsequently thereon, plain

execution matei-ial sale. for work and one due taxes conveyed improvements constructing tiffs Harrison, his interest thereon.” but used in appear prohibits interposed'a plea does not to have of the Constitution The same section alienation of the sent purchaser. of bona fide ques con- Neither “without the was the homestead purchaser spouse, given tion of bona fide man- her discussed his or Jones, providing, Jones v. prescribed law,” may 57 154 Pac. 1136 ner as Adams, 1158) may v. the however, unless mort 'be the homestead joined execution, joining gaged husband had al- there and wife the husband though separate living have that it be sold apart mortgage. satisfy from the have Section such a justifiable 1910, provides abandoned her without cause. “no Laws * ** party to the unless reduced husband shall foreclos- be valid the by wiriting proceedings, by and both husband subscribed ure he the and be bound would not Adams, (Shanks 44 Okla. Whelan v. [decid- wife.” foreclosure decree Norton n : by 11, 1920]) Pac. this court May 145 ed and his rights homestead remain the land would (meaning “It must be remembered that it unimpaired. right to con- would have the He homestead) the the homestead of the husband occupy enjoy tinue and the land as the alone, though in his the title be homestead, right name; so family, oc- made and it or continuous homestead the the by cupancy enjoyment the it Constitution.” with and carries the right family him on to have his with reside Gooch, In Gooch Okla. this court 38 the This the husband homestead. means said: right has the his him have wife with live family may “The consist of more homestead homestead, part family, on the likewise the as a and the by may land, than one tract and be owned right has the reside wife by wife, either the husband or his or both the husband on' the sale of homestead. .A foreclosure jointly, and long by or one tract be owned one mortgage the decree erate under homestead other, other the so the tract owned op- spouses one the cannot ¡occu- aggregate as the number of acres separation husband to force a between pied aas homestead does not exceed legal and wife. We for the know of acres.” right partition be- homestead approvingly inAnd that case Ehrick cited partition tween husband and wife—a of this Ehrick, Iowa, 68 Am. S.t. peculiar estate, interest, right as or known that, although wherein the court held the If homestead. the not a husband was apart prop- homestead had been set out of the party proceedings, wife foreclosure to continue the the erty wife, the husband nevertheless had right possession has a right full to live and cultivate home- the land, regard without or her to whether stead, although apart the wife chose to live title as the of the land was divested owner husband, long the from and that so as the by proceedings. sale under the foreclosure to live wife elected titled elsewhere not en- she homestead, the husband’s the interest any homestead, benefit the the wife, being in title to the land the is not a enjoy occupy husband entitled to and one, inchoate to become vested mere her sale under a foreclosure action the same. death, disposed by judicial Spindel, Alton Mercantile Co. v. 42 Okla. 210,holds that occupation “the homestead is for wife, gives the bene- of it home but as a joint family, and right the entire inter- fit of husband fur- therein without the ther act on his which vested. paramount regarded him, part, anyone to the est to be or thereof,” rights joint individual member consent di- cannot without or that “no act omission on the ol and If the husband been de- had husband., without case, might consent of his fendant foreclosure spouse, can result in an mortgage, abandonment Iiave -denied execution of family.” might it, homestead have denied 'executed pleaded payment debt, some Thus, jointly the homestead interest If valid defense. he had not executed wife, although vested tle husband and ti- mortgage, forged ifor his name been entirely spouse; land one thereto, mortgage void would have been is a interest homestead creature as to both husband and wife. husband statutes, nothing and Constitution like it proceed- party to the was not a foreclosure law; special ing known at common it is a rights unimpaired, ings, remain homestead his peculiar and been interest in real estate wife, husband’s virtue -the variously characterized different interest, right to remain has the homestead in exemption, fee, as an es courts tate. sary a freehold possession land without neces- estate, or a to life but we deem it unneces- purchaser sity paying rent to the precision define with 460. It survives the this cáse may ques- sale, assigns, foreclosure Cyc. death of either jurisdiction of the court on this tion the husband wife. Union Trust both ground. , Pac, Cox, 68, 155 206. It is Co. Okla. interest, jointly peculiar right in the husband and denominated home- vested wife closely family. The for mortgage benefit of stead. cleaves adheres so themselves itself hus- title to the land cannot be di- executed her defendant utterly (Whelan therefrom band would have void vorced foreclosure TS 11— Oklahoma McCall, hus to which either Okla. Blackwell 54 Okla. a court decree

sale under Theimer, party. If both husband Rice v. Rice v. Wool is not a band or wife ery, Smith, parties, Edwards v. are not made wife purchaser 544; Cushing Cummings, utterly are and sale Getzelman, course, 179 homa, the children Bruno v. 70 Okla title. Of takes no Proc., p. long necessary parties the husband Standard so family, the head of the iswife Having held defendant had by may represented father children are extinguish their mother interest judgment against to render the foreclosure or a deed executed ed abandonment husband, dispose question, her Defendant avers we will of that We mother their consent. father and was serv summons there is conflict of realize question, husband, attempted ed on her service of summons our as above decision outlined by publication was void. joint sequence ownership logical In the default re right. conclusions the homestead These duly Leonard, “having cited summoned Isaac by supported following authorities: Hef by required, not, law came but Urton, 479, 486; 12 71 Pac. ner v. Cal. Willis wholly finding made default.” this Is of ser 445; (Kan.) v. v. 52 Pac. Hofman Whitead on vice Isaac Leonard col conclusive Demple (Kan.) 976; 87 Brackett v. Pac. judgment lateral attack? The foreclosure 164; Banegas, 278, Rep. Am. 116 Cal. 58 St. personal does recite service of summons Abbott, Iowa, 154; v. Chase 20 Tadlock v. Leonard, on Isaac but defendant attached Eccles, Iowa, 579; 782; Reynolds, 20 Tex. 18 Larson v. alleges her answer what she case Mortgages (7th Ed.) Jones on copy be a pro “true and correct of all the 1423; Cyc. 556; 2, vol 21 see. Busenbark ceedings (meaning in said cause the foreclos Busenbark, 572, 33 Kan. 7 Dane Pac. case) ure and makes same of this ans (Wash.) Daniel 68 446. Pac. wer.” sufficiency of the answer bewill by by defendant, tested 10. its The assault averments construed in connec Becky Pettis, judgment transcript with the facts on fore disclosed proceedings attached thereto as an closure district is a a exhibit. Southern Surety Municipal Co. v. Excavator collateral attack. A 61 collateral attack on 215, judicial attempt Davis is an v. Board de avoid Com., unequivocal being 58 77. deny feat, it, There no clear and or evade or its force and effect judg recital in the provided by law; is, foreclosure manner not some ment that personally summons was served on way appeal, than writ some Leonard, may readily Isaac we error, certiorari, the case for the resort to for a motion new trial. entire record in the foreclosure attempting We are ods to name all the meth purpose ascertaining falling scope what kind of service within at direct any, if tack, on judgment Isaac Leonard. in this case the allega any demurrer proceedings admits the foreclosure not assailed is demurrer-¡ve answer, prescribed by correcting tions in the and on law for er method roneous attack judgments. transcript will A treat successful collateral record in the judgment equivalent operate judg foreclosure ment tion a vacate ease as does not on. judgment substantially provided judg roll sec aside —the 5146, merely Rev. Laws 1910. The recital ment is avoided evaded. Morrill Morrill, Rep. service in a 23 conclusive where Am. 95. St. Where positively judgment, litigant’s and in irrecon forms link contradicted chain in. judg title, party, plaintiff cilable conflict with opposing and the record—the Judgments, by objecting Black pleadings, ment roll. 273. Resort vol. sec. impeach evidence, record to a reci introduction in assails to its validity tal in the attacked meaus a record resort for defects on which to v. Kan. based, the Smith, record—'the entire roll. the attack is Core collateral Cyc. Milner, 1063-1064, Towne v. 31 88 au 23 and not direct. thorities also Bruno v. homa, Daniels, 1 ; Getzelman, Pac. Head v. 70 Okla 911; Ogden Walters, Proc., Kan. Pac. 15 12 Pac. 15 173 Standard support Kan. of a p. good col A collat attacked, every laterally absolutely intendment will be eral attack unless indulged uphold support it; j udg rendering in the court want of ment vice of questions assailed contains no recital of thus ser to decide process Attack, record is barren of Van Fleet on Ool. sec. Moffer pro the issuance and Jones, Oklahoma, service of 169 Pac. 652. That 67 ,the pre cess. then sumed service of attack made in the foreclos presumption collateral, service stands ure is settled contrary until overcome Black Culp, Oklahoma, evidence to the Griffin v. decisions Judgments, 271; Rogers DeBord, Continental Co. v. Gin 495: Pettts Carey my presence Rep. “Subscribed sworn in 20: (Wash.) Am. St. Miller, sworn day April, before me this 27th Head v. v. Reeves, Kan. A. D. 1912. Coit Daniels, 38 Kan. Haynie, “S. F. Clerk. 241; Mul Dec. Am. Haven, 30 Conn. “By Parker, Deputy. S. M. Beaty, 367; Hardy v. Gibbons, vey Ill. (Seal) Rep. Iams 562, Am. St. 84 Tex. Root “Affidavit by publication. to obtain service iiBut App.) 411.W. (Tex. Civ. S. Apr. 27, “Filed: served positively appear mode, different particular no other and in a Haynie, “S. F. Clerk District Court.” say. presumed is to will be —that We only conclude that the service on Isaac posi- explicitly and itself where the record Leonard, and the service referred to particular tively kind of service shows court in the decree, foreclosure ser- reason- in irreconcilable conflict vice publication, express service, presumption then the of other able recitation in the per- foreclosure decree that by character of disclosed record sonal service of summons was had on Isaac is the one which the Leonard. The notice is as fol- fully depend. subject court discussed on sive; see, also, lows : Haven, supra, Black in Coit v. “Notice for Publication. Judgments, vol secs. 270 inclu- “State Oklahoma, County. Carter- Richardson, Bank v. 34 Or. “In the District Court. 75 Am. 664. The record in the St. shows a summons issued for “The Farmers Loan Security Co.Plain- . Leonard; Becky tiff day vs. Isaac ofiieer made that on the Leonard, Leonard same and Isaac Defendants. No. service, return of the at- torney plaintiff mortgage for fore- “Said Leonard, Isaac will take following closure case made filed the notice that he has been sued the above affidavit: named court debt and foreclosure of mortgage, and must petition answer tne filed by “Affidavit to Obtain Publication. Service by plaintiff herein said or before the 13th day June, A. D. petition or Oklahoma, County, said will “State of Carter ss. true, be taken as and a for said plaintiff mortgage “In the District Court said Within for the action for foreclosure of County and State Aforesaid. accordingly. rendered day 27th April, “Dated this Security Company, “The Farmers Loan and

Plaintiff,, Becky vs. Leonard and Isaac Leon- RoDerts, “W. T. ard, Defendant. “Attorney for Plaintiff. (Seal) by “Affidavit to Obtain Service Publication. Haynie, “Attest: S. F. District Clerk. Roberts, being duly “W. T. sworn accord- ing law, attorney says that for ishe “By Parker, Deputy.” M.S. plaintiff the 19th and that on named above day validity Defendant assails the of the con- April, 1912, plaintiff filed said grounds: following structive service on the petition against said defend- district court a (1) publication Becky That the affidavit for did not show- Leonard and Isaac Leonard ants ing involved; (2) defendants were describe the land the affi- therefore the said that that plaintiff state, generally specifically, one note sum indebted to davit did not or interest, said indebtedness plaintiff any $200.00 diligence exercised by mortgage real es- lien on certain secured tate therein obtain in the state of summons on Isaac Leonard described. Oklahoma; (3) publi- cation notice neither described stated the nature of the land nor Says: That action Further “Affiant plaintiff’s claim. The bi’ought of mort- for debt years three Laws allowed' section gage lien. Leonard to have the Isaac Says, de- “Affiant Further the said judgment opened expired before this suit was fendant Isaac Leonard is a nonresident of the commenced. Oklahoma, state of summons necessary (A) land cannot be made on the said defend- itWas describe publication? ant Isaac Leonard within the said state of Defendant affidavit in the relies Oklahoma, plaintiff and that the said wish to Young, 24 Okla. Ballew v. by publica- obtain service on said defendant Sparks, City Okla. 648. Bank National ; further affiant saith not. attachment cases Those were permitted intervene Roberts, third “W. T. validity proceedings “Atty. assail for Plaintiff. 78- Oklahoma affidavjt publication ground them, owing property debts or this state sought property and failed describe the failed provisional any taken to be personal diligence serve show way” any appropriated remedies, or to ground (number also on supported an above), prop- publication to describe the notice failed garnishment authorized attachment article erty. the assault of held Procedure, Code of Civil a collat- interveners provisional impounding remedy nonresi- judgment in each case eral attack and that property, class cases in that dent’s de- affidavit did not was void because the depends a seiz- court’s the ure of the attached, publi- property scribe property. Waldock nonresident’s inferentially cation notice failed to state Pennoyer Atkins, v. v. Procedure authorizes the plain- sought nature tiff. a supra. Neff, of Civil Article 9 of the Code application to decisions have no Those plaintiff in a civil foreclosure case. money non- demand attach action on a property sections Rev. Laws state. Such Section resident’s therein, stating serv- authorizes 4671 and read must make affidavit following just, either of ice claim—that nature property, recovery (1) recover, ought “for real : he believes he amount that state. That is therein, any estate, interest or of nonresident of the is a the defendant any form determination or He the attachment affidavit. partition interest”; (2) real for the may publication, get by- nonresident then service on the property (3) property; real sale of provided affidavit makes the lien, mortgage, encum- or other provided section Rev. Laws title, quiet charge(4) to estab- required gives brance lish a trust a section the notice on, in, aside aside a cloud remove petition in an attachment conveyance of, or set enforce or to any property required to describe (5) convey property; agreement real an in prom nonresident; aon sue will; or set aside a to establish actions peti issory open and his account note or divorce; (7) (6) in actions to obtain a “in good reference tion is brought against a nonresident of actions state, property men defendant. Actions foreign corporation, having in this or a above, italicized number tioned them, sought property owing or debts distinguished Actions in rem. from actions by any provisional rem- to be taken edies, property, etc., recovery for the of real property, any w»ay”; appropriated or to be in partition of real the sale for to, of real (8) in actions which relate or the sub- mortgage, property other en ject a lien or is, personal property in of which state, real or quiet title, cumbrance, estab actions to defendant has claims where or on, trust, aside a cloud a remove a interest, contingent lish a lien or actual or there- conveyance of, or set aside in, wholly or to enforce or relief demanded consists agreement property, convey real partly to excluding or in him from inter- Kind, (Robison therein, actions in rem. 330; 23 Nev. est and such defendant is a nonres- 700; Brown, 118 N. C. foreign corporation; Bernhardt ident of the or a Ency. Garrison, & (9) PI. 48 Ill. defendant, being in Gould actions where the a mortgage 119) ; Oklahoma, departed Pr. and a real estate resident with the personal judgment for delay creditors, foreclosed intent to or his defraud (Echols mortgage v. Ree indebtedness summons, avoid or conceals 1065; Tracy burgh, 161 Pac. himself Okla. 67. with like intent. Crepin, 138 Pac. Na 40 Okla First These sections of the statute authorize Co., 66 Okla Bank v. Trust tional homa. 167 Pac. Colonial by publication service on nonresidents in the 985). In in actions not rem. eight actions, per first sonal of the above but no nonresidents, money against demand but on the davit ean be rendered affi order issues «..-onthe of attachment by publication (Continental Gin Co. v. Ar by provided Rev. Laws section nold, 613; Pennoyer 167 Pac. property be seized before Neff, ; Ency. 95 U. S. 24 L. Ed. 565 juriMTiotion. acquires Waldock anv Ency. PI. & 35) ; Pr. PI. & Pr. and no Atkins, 60 158 Pac. 587. The personal judgment against can be rendered property the nonresident’s seizure of in mortgagor a lication pub nonresident on service ordinary open action to collect a note ac (Jones (7th Mortgages Ed.) money demand is the basis of count the court’s served judgment Stanberry, Wood v. Ency. 21 Ohio St. jurisdiction, and the defendant 487). PI. & Pr. only by publication bound property against brought extent of the lev “Actions nonresident Ency. state, foreign corporation, having on. 17 PI. & Pr. ied 44. The affi- or a in publication was established.” separate basis for ficient publication davit is distinct from, was misdescribed' In the affidavit for land of attach- the affidavit for the order and, publication, inasmuch ment, nothing in stat- our there is while petition described the expressly requiring exhibit utes publication affidavit accurately, it was held that the failure property, land it is es- to describe directly refer, describe land in was not the affidavit sential inferentially, that such affidavit jurisdictional. In actions causes of rem—suits to to one or more mortgages, estate, foreclose clear designated title real action and where in section Supreme etc.—the Kansas Court holds nor neither the nor affidavit an attachment number of cases that the affidavit for service plaintiff’s petition (or re- describes by publication against is sufficient collateral quired describe) any property the non- any description attack without of the land. resident, then it is reasonable to hold that Sharp McColm, Allison v. publication- the affidavit for in an attachment Whitaker, Crimes, 106 Pan. Ennis v. description case should contain some 454; Douglass (Kan.) v. Lieberman property impounded, as held Ballew v. Pierce v. Butters. Kan. Young Sparks, City supra. Nat. Bank v. Shippen Kimball, 47 Kan. 27 Pac. 813. rem, money In actions not on a de- in this affidavit assailed states case plaintiff nothing nonresident, mand that defendants are the sum indebted prop- him to advise what interest, as shown $200 plaintiff erty subjecting demand un- promissory plaintiff by defendants, note executed publication publica- less the affidavit for had filed in therein district court gives tion notice him this information. The petition against showing a indebtedness, defendants necessarily attachment affidavit does not and that secured describe it. Bor this reason it is held mortgage lien real on certain estate therein pub- attachment cases that the affidavit for petition specifi- described. to foreclose publication lication and notice should con- cally land, necessarily so, describes description property tain some seized, mortgage, also the secured debt affirmatively the court’s so prays pos- sale. All the ,the appear record, especially supplied faces sible defects in reference to the affidavit are property so because seizure of the is the petition, and inasmuch as jurisdiction. basis of the court’s But in expressly petition, the affidavit refers proceeding is, in rem—that foreclose verified, which is also davit and gether hold the affi- we plaintiff’s petition real estate describes the —the petition be construed should to- property and is initial basis proceeding in a in rem jurisdiction. of the court’s There noth- nonresident; especially inas- true ing expressly requiring in the statute either published, much affidavit and is as the publica- the affidavit for or the initiatory step an action rem the property sought tion notice to describe the jurisdiction. acquisition Sharp be reached in in a McColm, supra, the defects the affidavit rem, why we find no we should read petition reaso^ were cured reference ' into requirement, the statute exhibits thereto. Miller Eastman. especially on a collateral attack. 408, 43 affi- Neb. N. W. defects in the publication in an suit davit for attachment Supreme The Kansas Court in Allison v. supplied were to the affidavit reference Whitaker, 106 Pac. said that “the stat- opinion in for attachment. The that case providing by pub- ute for service of summons says: * “The * * will look at the entire rec- court require lication does not either that ord, appear and, if all the affidavits the affidavit or notice shall contain a de- issuing before the court the attachment that scription land,” quiet an action to jurisdiction the essential facts to confer were y. title; Sharp McColm, 101 Pac. duly therein, sworn to will not by publica- said: “An affidavit for service be, declared void.” Also Jones Danforth. convey designed any informa- tion is not (Neb.) Marshall, 495; Bray 99 N. W. served”; that “its to the defendant to Mo. 327. purpose bring upon is to record the stat- publication utory publication foundation for the 12. Neither is the affidavit plain- mortgage that fails to state notice.” case, because it That was a defective foreclosure personal diligence obtain and the affidavit was construed with exercised due tiff petition reference to the to foreclose the state. An affidavit for service in this mortgage. publication alleging also is The court stated: “When the the defendant that plaintiff affidavit in that disclosed the action the state and that of obtain service a nonresident is mortgage was a real one foreclose estate summons unable to mortgage, and to under such is sufficient sell land suf- Oklahoma Oklahoma in the required plain be stated allegation that additional without the pre- nature, general personal and not diligence notice is its obtain exercised tiff pro- itsof Sparks, minutiae all the City 50 cise character of Bank v. National service. 182; advised visions,” Youijg, “if the defendant 24 Okla. Ballew v. mortgage or Oklahoma, Arnold, that will be land sold Gin Co. v. Continental 167 Pac. partitioned, Buehannan, will be under an attachment or Washburn v. quieted, Harvey Harvey land that the title to the will 34 Pac. Kan. Crabtree, proceed like, com- (Kan.) or the Coombs 118 Pac. “every subsequent Dolan, plete,” act of 7 Wash. DeCorvet v. Mo. petition Mullan, pursuant Anderson 76 Cal. Burnish v. court taken Goff, jurisdiction, ex- Cal. which exercise of subject of land made the tend to tract publication notice failure petition.” of the action an action involved the land to describe rem or to state closed is mortgage fore- pub- to be only between difference About the mortgage, or estate a real Sharp and the McColm notice lication secured debt note or amount in the notice in this case one Kansas case at- mortgage, collateral on a not fatal petition filed stated in the court tack estate, mortgage while real foreclose pub- proceedings. was a There foreclosure says merely “a mort- the notice in gage”, case correctly notice; stated that notice lication the court in which number of the case specifying real or whether pending, the case property. in this personal But the notice docket, name petition clearly filed to referred to plaintiff defend- defend- names of the mortgage, number and the foreclose the plaintiff ; ants ants and had sued the court of in the foreclosure case district “in named debt above ' county, reference the no- Garter mortgage,” and must warn defendant that tice a sufficient to petition answer filed herein “the said mortgage covering his foreclosure suit plaintiff day June, on or before the 13th property against him commenced petition true, or said will taken as county, in the district of Carter Okla- and a said homa, in case No. 1408. On attack collateral mortgage action for foreclosure of will be notice, publication will we treat contain- accordingly.” already rendered We have seen ing required by material elements the stat- that -a be foreclosed in this ute, sufficient if which is uncertain and any personal judgment state without mortgage omitted therefrom certain Reeburgh, indebtedness. Echols v. publication reference to the affidavit 1065; Tracey Crepin, original petition the gage. foreclose the mort- First National apply following principle We Bank v. Colonial Trust announced Van Fleet on Collateral At- Pennoyer 167 U. Neff, Pac. 985. Under 95 tack, section 774: cases, S. 25 L. Ed. and allied judicial pro- deficiency papers “The and entries can be rendered paper ceeding, from or initiative the summons a nonresident on constructive service of confirma- to the final decree process. already We have seen that fore- instrument, tion, being single in a one col- petition initiatory closure acquisition step is the misdescrip- attack on account of a lateral jurisdiction, the affidavit applied land, the same rules are tion of the construction of certain things addition of a false or publication step, is the second grants, and if there are identify corpus notice things step the third and last required sold, jurisdiction. intended be affected or confer While description mistaken true secton Laws re- expressly it, decided vitiate will not quires publication the notice “to state the by Supreme Arkansas.” Court of the nature of the which will ren- Fleet dered,” Van stated briefly above this doctrine very The stated and in Supreme general applied Court Kansas terms. As the Sharp the court Rog Rogers McColm, supra, v. Sharp (Kan.) McColm 101 Pac. “the nature (Kan.) In a collateral judgment (may 143 Pac. briefly of a ers stated a few publication general no in the terms, defects based on attack the statement be elab- land orated, tice, the every describe failure to to cover the detail with the utmost proceeding in rem certainty, including description defect fatal the of real Whitaker, (Kan.) Allison affected”; estate to be nonresident. reviewing and after (Kan.) 155 Stiner Shultz former Kansas decisions it was further (Kan.) 101 Pac. Sharp McColm apparent stated: that, “Prom these decisions (Kan.) Doyle Hays & Inv. Co. Land attack, cases collateral the nature county (Kan.) in decide the court Garter 102 Pac. Pac. Barrett v. Struble The district jurisdiction to had case not the publication should notice whether expressly require Tlie the does not statute affidavit the reference to construed with be for publication the to notice amount.of petition— publication the foreclosure mortgage debt, merely of to but “the nature” of sufficiency jurisdiction test had publication to .the judgment. The failure the notice according pre- rules notice mortgage state the amount of not note is Isaac statutes of this state. scribed fatal on a collateral attack. Holland v. in this Leonard is not now the court before Adair, publica 40.Mo. But was a there case, the fore- if court in the district notice, and it did state facts. material jurisdiction pass did have to closure case not There is a vast difference of a the status notice, upon sufficiency publication upon process based no service of personally summoned, because he was not upon and one based defects service jurisdiction how can this now court to have process. Defects in the pass upon sufficiency of the notice? advantage proceed must be taken inof direct court Some decide whether ings ground furnish no at collateral jurisdiction was judgment, render the foreclosure judgment, especially tack ap on the when it rendering court pears the court whose is as jurisdiction mortgages, ment foreclose sailed decided that service of exercising jurisdiction and in it was Eney. Pr., pp. sufficient. 704-707, PI. & absolutely necessary pass sufficiency inclusive; Ency. Pr., p. 120; PI. & Stever by publication. of the constructve service Dittman, mac Oil & Gas Co. v 245 U. S. 210. Struble, In Garrett v. to hear and determine Kansas court held there was a total jurisdiction try and decide all ease failure to state in the notice material questions ing controversy, includ involved required by statute, matter the service sufficiency pass power upon subject attack, was void and to collateral Quarl process. v. Abbott where there was not such an entire omission (Ind.) appoint 1 N. E. Jurisdiction notice, of material matter from the the serv living of a estate administrator merely Gushing ice was ings, Oklahoma, voidable. v. Cum person (Griffith Cranch, 9), Frazier, Mr. Justice prize a condemn a lawful vessel that was Sharp being held “the attack (Hose Cranch, captured Himely, never proceeding, thougn a collateral notice was 241, 269), upon any has never been conferred complete, although irregular not fective, and de jurisdiction court. base But rendering will not have effect of foreclosure decree constructive service nullity,” decree and stated rule this process against a nonresident vested in the applicable to cases where state, and in district courts cise of the exer publication, based on constructive service those courts must personal service, as observed that as in well pass upon sufficiencyof first construct good has been said “it petition filing ive service. The of tlie to fore reason exists for more liberal in cases close, publication, the affidavit for of constructive notice than in those where jurisdic notice set motion the personal, the service the defendants tion of the and the thus entitled, the former class of cases are as of to'pass power invoked includes the case, right, open judgment.” In that sufficiency taken stexis cites, Sharp among cases, Mr. Justice jurisdiction. true, invoke its to then Essig Lower, Ind. 21 N. E. the division line direct col between proper which announces the rule. Indi judgments lateral attack on has-been abol ana said. by Judge ished. As said St. Sanborn in Foltz v. “juris L. & R S. F. 60 Fed. a collateral attack these “This is de-: subject power wholly diction crees; they void, matter is the and, unless general question, though they deal with the abstract be erron- must fail attack particular relating proceeded in hear the these cases facts ease Had the eous. any notice, clear question, then would be to this or and to determine whether jurisdiction, but it that there was want they are sufficient invoke the exer special finding, clearly appears, by there was some power,” every cise issue within the and “to determine notice, such notice and that scope authority, of its ac became, affidavit. It was based cording evidence,” and, own the law to its view of therefore, a to be determined right “whether decision its is proceedings pend- were which these courts in upon wrong,” “is final and conclusive ing notices affidavits whether such as to it, by parties having writ of determined the unless reversed court were sufficient. The jurisdiction, question such favor of appeal, impeached for fraud.” error 296 78 Oklahoma par- 5146, inclusive, as all the is conclusive sections 5144 to Bev. Laws determination collaterally attacked.” when ties 1910. Those sections direct the clerk complete order of the court to record make Judgments (2nd Ed.) sec. Black on every finally case as soon as deter- says: mined, petition, such record to contain “the jurisdic- general confers a statute “Where return, pleadings the subse- particular a class of tion over tribunal, quent thereto, orders, judg- reports, verdicts, essential facts its decision ments, and all material acts and partic- jurisdiction to the ain existence spoken court.” When we have this con- belonging class will case ular opinion face, of a So we attack. on its against collateral _when as clusive a notice which defective, invalidity or the mean a is whose is dis- which adjudged suffi- informal, has inspection closed from an record— such a will thereunder cient, rendered p. Proc., roll. See Standard proceeding. in a collateral heid void be 744. no- insufficient anof in case And jur- question of tice, decides the court 15. The the foreclosure if the case erroneously, the September 14, 1912, isdiction voidable, and this was entered ap- binding reversed until but 18, 1916, suit was commenced on October question of of the peal. the determination The years than rendition more three the The presented to sufficiency affidavits of the judgment. sus- foreclosure court a sum- proof the service as court part tained demurrer to that an- the defendant failure of mons ques- averring exe- defendant’s the deed judicial answer swer, tion determination is a binding purchaser therefore jurisdiction, and at the cuted the sheriff or reversed.” because, aside void, until as sale was foreclosure averred, paid to the “said was never bid prior decisions in accord sheriff, paid of this clerk never Woolery, in Rice this of 199; judgment against court, and that DeBord, Okla. Gin Co. Continental remains defendants said case unsatisfied.” Black Theimer. Rice see, purchaser sale did also, at the foreclosure Bos McCall, Okla. t.well pay bid, not claim to on not then could Fleet Sharp, Van 15 Ohio well v. equitable assignee mortgage, Cutting, Attack, Hotchkiss Col. nothing. owes him The the defendant Cyc. 14 Minn. An was for cash. foreclosure s^le publication or be one notice to course Of selling property officer under a decree can cannot therein named defendants more property terms, and such such sell such nonresident to other as notice treated only, provided decree and terms are therein. not named defendants governing sale, law in force which such publication named incorporated case notice The into and of such correctly; parties decree, it was a and the officer has no though notice, accept de payment defective. sell on or to credit adjudged sufficient, anything money, and that the notice cree than bid lawful unless impeached adjudication expressly cannot in a col otherwise authorized the decree enough governing lateral publication the law force such sales. As mortgagor purchaser construction, between the 'and notice to call pay application sale, and construction moans of who refuses his bid a cash passes Hogue Corbit, title under a deed the law the facts stated. executed sheriff, mortgagor Rep. Ill. has 156 White, 47 Am. to have St. Miller v. property resold foreclose 46 W. Va. 76 Am. St. mortgage. Hooper (Neb.) v. Castetter 63 N. On the demurrer we answer Mfg. W. International Co. Brammer treating transcript 'in the record the Mfg. Co., 396; Phelps Jackson, 138 Fed. roll, foreclosure case as the but Ark. Crummey, Oklahoma, Allison v. disputed whether it is fact 691; Langley Ford, Oklahoma, when comes trial on answer. 471; Glory Bagby, signified at common law roll 188 Pac. 881. parchment upon proceed- roll of which ings a deed transactions of Whether court were executed the sheriff and officers, entered and if confirmed was then de- the court sufficient title posited moriam, support treasury plea perpetuam purchaser in its b'ona fide rei filed me- paper universally sup- a vendee of the sheriff’s vendee since

plied place upon point express parchment opinion, we roll has yet equivalent has not fallen into disuse. The been raised in this case judgment roll, provided allegation however, than in by other the defendant’s Smith Williams subject competent said land to all defend- tending took to show whether ant’s defenses. such allotments are under restrictions. — 4. Deeds to Action Reform —Defense— 16. Tbis cause is reversed and remanded Cancellation. to the district court with directions to over- deed, In an parties action to reform a part rule demurrer of de- precluded filing defendant are not alleging fendant’s answer no summons was cross-bill, alleging invalidity of the deed sale, her in served on alleging the foreclosure and asking and it be canceled. Cochran, purchaser Right Jury 5. Trial. Same— paid sale, bid, has and to allow deed, In an action reformation of for parties up to make the issues in that court and cellation of a cross-bill defendants can- equity; as a court of relief to defendant same, sought where the relief being showing conditioned on her laches no parties purely equitable both in char- negligence attacking depends solely upon acter and the exercise of equity powers of want of service of jury. error to refuse a for a according demand her equitable principles herein laid down. She will be allowed to Pittsburg Error flom Court. District require- amend her answer to meet these County; Higgins, Judge. R. W. ments. Action J. M. Smith John Wil- HARRISON, JOHNSON, McNEILL, HIG- others, McCurtain, liams and heirs of Joshua GINS, BAILEY, JJ., concur. deceased, defendants, Judgment plaintiff brings Affirmed. RAINEY, error. J., part C. dissents from that of opinion which holds extrinsic evidence Bros, Horton, plain- S. A. Counts admissible contradict recital tiff error. of though service of Hulsey, W. J. in error. for defendants charged. fraud is HARRISON, This action involves the J. validity to restricted Choctaw of a deed brought action M. lands. J. Smith McCurtain, of Joshua the heirs Choctaw, reform a deed made half-blood McCurtain, which deed to Smith Joshua SMITH v. WILLIAMS al. et ground sought of reformed on to be Opinion No. May 25, Filed 1920. description land. mutual mistake (Syllabus by Court.) comprised east McCurtain’s allotment section N. W. of and lot 2 % % Indians —Restrictions on Lands —Exclu- N„ attempted to Twp. east. He R. 16 Congress. sive Powers allotment, convey acres of this Smith question When the restriction on N. E. the said acres % alienation of lands allotted to Five Civi- but, section; de- right instead of power N. W. of said

lized Tribes or of aliena- % involved, acres, scribing the deed described tion is acts of resort must be had to said Congress matters, relating these W. be the S. which would lot % Congress and to the acts of alone. alleged quarter that he section. Smith — — quarter buying Equitable section Alienation Same the N. E. ofVi. Land Rights. same, he and that W. the S. instead paid % wagon right part span of mules and of an $527 allottee having knowledge Tribes to land, and, Five Civilized alienate his land and person pur- deed, misdescription in the went thereto, acquire land and chase such title bought, thought the land which peculiarly rights strictly statutory is created timber, put- improved clearing it, off the Congress, acts which cultivation, placing a ting the land except through possibly means available improvements valuable and other house Congress prescribed, title which cannot equitable discovery upon the claims that thereon. He acquired from such allottee Mc- in the deed he asked mistake grounds. same, and McCurtain Ourtain to .correct Quantum of Indian Blood—Evi- Same— promised taken McCurtain was so. to do dence—Records. to see him to have the went sick Smith question quantum On the of Indian corrected, in too McCurtain was deed allottee, of an as to blood whether so and died without a condition to bad do his allotments restric- were Therefore, begun doing this suit so. tions, as competent records are enrollment it describe so blood, reform the deed make tending quantum to show the patents McCurtain intended sell the land their allotments records

Case Details

Case Name: Pettis v. Johnston

Court Name: Supreme Court of Oklahoma

Date Published: Jun 1, 1920

Citation: 190 P. 681

Docket Number: 9546

Court Abbreviation: Okla.