88 N.W. 292 | N.D. | 1901
This is an action brought upon a judgment rendered in a justice’s court of Walsh county on May 2, 1891. The complaint is in the usual form of such complaints, and alleges that the judgment was duly assigned to the plaintiff. The answer denies that the justice of the peace before whom it is claimed such‘judgment was recovered had jurisdiction to enter any judgment, for the reason that no personal or constructive service was ever procured upon the defendant, nor did the defendant ever appear in such action. The answer further alleges that the plaintiff is not the owner of the judgment sued upon. The answer asks for affirmative
The first question to be determined is, what effect is to be given to the filing of such abstract in the office of the clerk of the district court, so far as the jurisdiction of the justice originally to render the judgment is concerned? The plaintifl contends that such filing of such transcript or abstract makes the judgment a judgment of the district court in all respects, and for all purposes, and gives-to such judgment thereafter like presumptions of regularity and jurisdiction attaching to judgments of district courts. The language of § 549^ is that, after such docketing of such transcript in said clerk’s office, “it becomes a judgment of such district court, and a. lien upon real property.” Such section enlarges the effect of such judgment after such filing. The effect is enlarged, so that it becomes a lien on real estate, and it is enlarged perhaps in other respects. IYom the language of such section, and from authoritative decisions on similar statutes, it is not our understanding that such filing' renders such judgment thereafter a judgment of the district court, to the extent of clothing it with presumptions of regularity and jurisdiction, following the judgments of courts -of general jurisdiction. In our opinion the effect of such filing is the following: The district court is thereafter to have full control of the enforcement and collection of such judgment. It becomes a lien on real estate, and the justice of the peace thereafter has no control over it, nor' power to enforce it. The judgment nevertheless continues to be a judgment of a justice of the peace so far as relates to the principles to be applied in determining the jurisdiction of the justice to render it. Agar v. Tibbetts, 56 Hun. 272, 9 N. Y. Supp. 591; Kerns v. Graves, 26 Cal. 156.
The answer directly alleged that the judgment of the justice of the peace was void, for the reason that no personal service was ever procured upon the defendant, as provided by § 5252, Rev. Codes. If there was any personal service on him, it must have been by virtue of service upon his wife while at the Woods place, as it is undisputed that he was in the Northwest Territory after April 15th, and up' to August of the same year. Was there service on the defendant under subdivision 7 of § 5252, Rev. Codes? It reads as follows: “In all other cases to the defendant personally; and if the defendant cannot conveniently be found, by leaving a copy thereof at his dwelling house in the presence of one or more of the members of his family over the age of 14 years, or if the defendant resides in the family of another, with one of the members of the family in which he resides over the age of 14 years.” The question resolves itself into a determination of the fact whether the Woods house was the dwelling house of the defendant on April 25, 1891. The evidence is uncontradicted that the wife remained there for a temporary purpose only. She went there with no idea of remaining there permanently. The husband went there only casually, and remained only tem
The judgment of the district court is affirmed.