Plummer v. M. D. Wells & Co.
6 Indian Terr. 189
Ct. App. Ind. Terr.
1906
Check Treatment
Townsend, J.

The appellant has filed 15 specifications of error, but considers them all under one argument. The court below sustained the exceptions filed to the report of the master, wherein the master found as a matter of law that the judgment sought to be proven by the appellees against the appellant, as administrator of the estate of E. G. Lloyd, deceased, could not be proven, for the reason that the court rendering the judgment had no jurisdiction of the person of said E. G. Lloyd at the *196time of the rendition of the same. The record of said judgment is as follows: “Record United States Court, in the Indian Territory, Central District, at Atoka. Saturday, November 13th, 1897. No. 100. M. D. Wells & Company, vs W. A. Durant & Company. On this day this cause came on to be heard, and both plaintiffs and defendants appearing by their attorneys, and the defendant, W. A. Durant appeared in person. It appeared to the court that plaintiffs' cause of action is founded upon a verified account, and that the same is just and due, and no denial or defense thereto was entered by defendants, but defendants confessed judgment in the sum of five hundred forty-eight dollars and ninety cents. Wherefore, it is ordered, adjudged, and decreed that plaintiffs, M. D. Wells & Company, a firm composed of M. D. Wells, Henry J. McFarland, and Brenton R. Wells, do have and recover of defendants, W. A. Durant & Company, a firm composed of W. A. Durant and Gregg Lloyd, and of and against each of said firm, the just and* true sum of five hundred and forty-eight dollars and ninety cents ($548.90), together with interest thereon from this date, November 13th, 1897, at the rate of 6 per cent, per annum, and for all costs in this behalf expended, for all of which let execution issue.'' It thus appears that said judgment was rendered in the United States Court at Atoka, I. T., on November 13, 1897. On December 4, 1899, the appellant was appointed and qualified as administrator of the estate of E.. G. Lloyd, deceased, by the Probate Court at Atoka, I. T. On February 26, 1901, said appellant filed his first annual report, which states that said claim had been presented to him as such administrator, and by him disallowed, and on August 23, 1902, the claim was presented to and asked to be allowed by the court, and was by the court referred to the probate commissioner.

The appellant states his contention as follows: “The controlling point in this case'is whether or not the District *197Court at Atoka, sitting in the capacity of a Probate Court, had jurisdiction to set aside or disallow (the claim founded on) this judgment on the ground that the same was obtained on the common-law side of the docket in said District Court, although without any-service on the decedent, E. G. Lloyd, and therefore having no jurisdiction over him.” Appellant contends that a Probate Court in Arkansas is a superior court, and that the United States District Court, in addition'to its common-law jurisdiction, also has probate jurisdiction, and “our contention is that this is a direct proceeding, and that the order of this Probate Court, which is a judgment, in disallowing or allowing this judgment, would be conclusive and res adjudicata against that judgment, and therefore it is not a collateral proceeding, but a direct proceeding in a court that had jurisdiction to determine all the issues.”

Under his specifications of error Nos. 7 and 8 appellant sets out the testimony of W. A. Durant and It. L. Williams, to prove that there was no service or appearance, either in person- or by attorney, of the said E. G. Lloyd at the time said judgment was taken against him, and cites section 5201, Mansf. Dig. (Ind. Ter. Ann. St. 1899, § 3406), as follows: “All judgments, orders, sentences and decrees made, rendered or pronounced by any of the dourts of this state, against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or decrees, shall be absolutely null and void” — to establish the imposition that the said judgment was void. But appellees contend that this is a collateral attack in the Probate Court upon a judgment of the District Court, both in the central district, Indian Terirtory, sitting at Atoka, I. T., and that the law applicable to setting aside domestic judgments must apply. In Black on Judgments, vol. 2, § 897, it is said: “Except in a very few states, the doctrine is firmly settled that, when the judgment *198of a domestic court of record comes collaterally in question, the presumption that the court had jurisdiction of the subject and parties is irrefragable and conclusive, unless want of jurisdiction distinctly appears on the face of the record.”

Appellee cites Mansf. Dig. § 5202 (Ind. Ter. Ann. St. 1899, § 3407): “In all cases where it appears, from a recital in the records of any such court, that such notice has been given, it shall be evidence of such fact”- — which provides that, where the record recites that such notice has been given, it shall be evidence of that fact, and cites Boyd vs Roane, 49 Ark. 397, 5 S. W. 704, which says: “It is generally thought to be better that the doctrine that the record importing absolute verity should work an occasional hardship than that public confidence should be shaken in the stability of judicial proceedings by suffering them to be lightly overturned; and for this reason the weight of authority, in the ease of a domestic judgment collaterally attacked, is that the question of notice or no notice must be tried 'by the court upon an inspection of the record only. Freeman on Judgments, § 124 et seq.; Crepps vs Durden, 1 Smith Lead. Cas. pt. 2 (8th Ed.) p. 1139 et seq. Guided by this rule, we turn to the decree under consideration. It is in the following form, viz.: ‘J. J. Busby vs M. L. Bell et al. Now on this day this cause came on to be heard, and come the parties to said cause, by their respective attorneys, and by consent it is ordered,' ” etc. And on page 413 of 49 Ark., page 708 of 5 S. W., the court says: “It is not necessary that jurisdictional facts should appear of record in a court of general, jurisdiction. That was the main question at issue in Borden vs State, 11 Ark. 519, and the previous cases of this court, holding that the facts must so appear were there overruled. Baskins vs Wyld, 39 Ark. 351, 352; Byrd vs Clendenin, 11 Ark. 572; Harrison vs Lamar, 33 Ark. 828; Applegate vs Lexington, 117 U. S. 269, 6 Sup. Ct. 742, 29 L. Ed. 892. The repeated *199assertion of this court that a judgment of a court of competent jurisdiction can be impeached only on appeal or writ of error, or in some direct proceeding taken to vacate it, precludes the idea that evidence outside of the record can be heard for that purpose. The case of Cato vs Stewart, 28 Ark. 146, is authority in point. That was an unsuccessful attempt to contradict the recital of a domestic judgment to the effect that the defendant had appeared by attorney. The fact of service here, however, is raised by presumption, and not proved by recital. ‘But the better opinion would seem to be/ say the learned annotators of Smith’s Leading Cases, ‘that the silence of the record will not make way for evidence that would not have been admissible if it”had spoken/ and they cite Borden vs State as authority to that point. 1 Smith’s Leading Cases, pt. 2 (8th Ed.) p. 1139. ‘To say,’ continue the annotators, ‘that the record is void unless it contains an entry of the service of process, and yet hold that a false entry that process has been served will preclude inquiry or denial, would seem to be equally inconsistent with itself and with reason. Every entry of record derives its weight from the same source, and'an entry of judgment should have at least equal authority with an entry of service.’ ”

Appellees insist that the record of service in the case at bar comes under the rule laid down in this case, and that the record of service cannot be attacked by evidence aliunde. Appellees also contend, under section 3912, Mansf. Big. (Ind. Ter. Ann. St. 1899, § 2592), which is as follows: “A judgment ¿shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the jriclgment is rendered, or, jf the plaintiff seeks its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment” — that it must be shown that there is a valid defense before a judgment shall be set aside, and cite *200Chambliss vs Reppy, 54 Ark. 541, 542, 16 S. W. 571. The court says: “If the judgment was in fact obtained by the plaintiff's attorney upon the representation that there was a return of service of process, when in fact there had been no service and no return of service by the officer, then the judgment was obtained through ‘fraud practiced by the successful party,' within the meaning of the fourth subdivision of section 3909, supra, even though the attorney acted under a misapprehension of the true state of facts. But section 3912 of Mansfield's Digest, which is a part of the same chapter of the Civil Code of Procedure from which section 3909 is taken, provides that such a judgment shall not be vacated ‘until it is adjudged that there is a valid defense to the action in which the judgment was rendered.' " In Kizer Lumber Co. vs Mosely, 56 Ark. 544, 20 S. W. 409, the court held: “A decree by default in an equitable proceeding will not be set aside at a subsequent term upon a motion based on the grounds that the defendant had no notice of the pendency of the suit. The proper practice is to file a complaint in equity, alleging that the defendant had no notice of the pendency of the suit, and also that he bad a valid defense thereto.''

It seems to be settled that it is not necessary for the judgment to recite the jurisdictional facts, but, if the judgment itself recite jurisdictional facts, the same cannot be contradicted by evidence aliunde in a collateral proceeding. The decisions of the Siqireme Court of Arkansas are harmonious on the question of collateral attack on the judgments, and many of these decisions are to be found. Tally, Administrator, vs Reynolds, 1 Ark. 99, 31 Am. Dec. 737; Borden vs State, 11 Ark. 519; Boyd et al. vs Roane et al., 49 Ark. 397, 5 S. W. 704; Marks vs Matthews, 50 Ark. 338, 7 S. W. 303; Cato and Wife vs Stewart, 28 Ark. 146; Harrison vs Lamar, 33 Ark. 824; Denton vs Roddy, 34 Ark. 642; Holland and Wife vs Burris, *20128 Ark. 171; Chollar et al. vs Temple, 39 Ark. 238; Kizer Lumber Co. vs Mosely, 56 Ark. 544, 20 S. W. 409; Wilkerson vs Schoonmaker et al. (Tex. Sup.) 14 S. W. 223, 19 Am. St. Rep. 803; Sibley vs Miller (Ind. Ter.) 64 S. W. 577; Heck vs Martin (Tex. Sup.) 13 S. W. 51, 16 Am. St. Rep. 915; Williams vs Hays (Tex. Sup.) 13 S. W. 1029, 19 Am. St. Rep. 752. Black on Judgments, vol. 1, § 273, says: “Hence a recital in a judgment that the original process was served on the defendant, or that publication (when allowed in lieu of service of process) was made, or that the party appeared by attorney or by answer, is conclusive when the record is collaterally put in issue, unless the recital is positively contradicted by the record itself.' * * So in an action against two defendants jointly, on a promissory note, personal service was had on one of them, and the other was served by piiblication. The record did not show that the latter had filed any pleadings in the case, but the judgment of the court recited that ‘both parties waived a jury, and submitted the cause to the court upon the law and facts’; and it was held that the record disclosed a personal appearance of both defendants, and the recitals of the judgment were conclusive. A very strong application of this rule of ascribing absolute verity to the record was made in a recent case in Texas It was a collateral attack upon the judgment of a domestic court of general jurisdiction, and the nullity of the judgment for want of jurisdiction over the person of the defendant was insisted on because the return upon the writ of citation showed that the alleged publication, as therein recited, could not have been made. The judgment, however, recited that the defendant failed to appear and answer, ‘but- wholly made default, although duly cited with process.’ It was held that, to determine whether the record shows affirmatively that there was proper service, the whole of it must be considered together, and that the recital in the judgment, which was the last act of the court in the case, that the defendant was ‘duly cited,’ imported absolute *202verity.” The judgment sought to be attacked in this case recited that “on this day this cause came on to be heard, and both plaintiffs and defendants appearing by their attorneys and the defendant W. A. Durant appeared in person.” We are satisfied that the proceeding before the Probate Court was not a direct, but a collateral, attack upon a domestic judgment of a court of general jurisdiction, and, it being satisfactorily shown by the record that this court had jurisdiction of the parties and the subject-matter, said judgment cannot be attacked in this proceeding.

The second contention of appellant, that the claim was never properly exhibited within two years, as required by law, was answered by the master as follows: “(2) That this claim was exhibited to the administrator within two years from the date of granting letters of administration.” And the third contention of appellant: “That said claim, after it was disallowed by the administrator, was never filed with the clerk of the proper court, alleging in substance that if the claimants, the appellees herein, desired to have the action of the administrator revised by the proper court, 'within two years from the date of the notice of the granting of letters of administration the said claim should have been filed with the clerk of said court, or at least within two years from the date of its final disallowance, and that said claim was therefore barred”' — was waived by his appearance and defense in this case. See Bellows, Adm'r, vs Cheek, 20 Ark. 431. “The notice which the statute requires to be given to the administrator of the intended application to the Probate Court for the allowance of a claim answers the purpose of the writ in the ordinary actions. Its object is to afford the administrator an opportunity of appearing before the court and contesting the demand. But in this case the appellant appeared and depended upon the merits, and thus the object of the notice was accomplished, or, in other *203words, notice was waived. Pennington, Adm’r, vs Gibson, 1 Eng. R. 447.”

Hence the judgment of the court below, in rendering judgment for the appellees, was correct, and it is hereby affirmed.

Gill, J., concurs. Raymond, C. J., not participating.