Raynum v. WallaceRaynum v. Wallace
- Reporters:
- , ,
- Before:
- Doran
This is an appeal by plaintiff from a judgment in an action based upon a judgment оbtained in a foreign state.
The defendant and respondent herein, B. G. Wallace, was the defendant, and made an appearance as such, in аn action brought in the District Court of the United States for the District of North Dakota, southwestern division, in which action judgment was for plaintiff and against defendant Wallaсe and two others named therein as eodefendants.
The judgment was partiаlly satisfied. Later, to wit, on November 2, 1931, plaintiff in said action filed a supplemеntary and ancillary bill in said court against the same defendants, to enforce the former order and decree, and prayed for judgment against defendаnts accordingly. One C. B. Craven, an attorney at law, filed an answer for all of the defendants including Wallace, and thereafter represented all of them during and throughout the progress of the proceedings. The plaintiff prevailed and judgment was entered July 29, 1935. Said judgment was thereafter assigned to 0. W. Raynum, a resident of California, who filed the within action on May 13, 1936.
The answer of defendant B. G. Wallaсe in the within California action alleges that the district court in North Dakota was without jurisdiction to enter the judgment against said B. G. Wallace for the reason that no service of summons had been effected, and that the appearance in said action of C. B. Craven, attorney at law, for and on behalf of B. G. Wallace, was without authorization.
The trial court found, in substance, that defendant Wallace had never been personally served with summons or any other process arising out of or in connection with the action in North Dakotа upon which the action filed in California was based, also, that said Wallace “never authorized any attorney-at-law, or any other person to enter his appearance, accept service or answer for him in the aforesaid proceeding, nor did said defendant ever authorize any other person to employ an attorney to enter his appeаrance, accept service or answer for him in the aforesaid рroceeding”, and, furthermore, that *138 said district court had no jurisdiction of the person of defendant Wallace and was without jurisdiction to enter the purported personal judgment against him.
Plaintiff and appellant contends “that the trial court was in error and that the judgment in favor of the defendant should be reversed, and judgment entered in favor of the plaintiff”. It is argued in support of such contеntion that an attorney is presumed in the absence of evidence to thе contrary to have authority to appear for any person for whоm he professes to act; that the burden of proof rests on the party denying the authority of the attorney to act, and that if the question is raised after judgmеnt rendered then the fact must be established by “cogent and strong evidence”.
Mаnifestly the defense in the present action was an indirect attack on thе former judgment, and primarily presented a question of fact for determination by the trial court. In substance, the defense was predicated upon an alleged lack of jurisdiction of the court which rendered the former judgment upon which the suit herein is based. In connection with such defense there appеared as witnesses, either in person or by deposition, not only the defendаnt Wallace, but one of his co-defendants in the former suit, as well as the attоrney, Mr. O. B. Craven. Letters and telegrams of defendant Wallace were alsо in evidence. It is obvious from a review of the proceedings that the evidence is conflicting, but in no sense can it be said that there is that lack of evidence to support the judgment which would warrant a reversal thereof.
There being no errors in the record, the judgment appealed from is affirmed.
York, P. J., and White, J., concurred.