Ebner v. Heid , 2 Alaska 600 ( 1905 )

GUNNISON, District Judge.

If the further reply against which this motion is directed is sham, frivolous, and irrelevant, it may, under the second paragraph of section 70, Alaska Code of Civil Procedure, be stricken. The further reply seems to be sufficient as to form. . It therefore becomes essential to inquire as to its contents. If it presents no defense which under the law can be interposed to the allegations, it is within the prohibition of the law, and must be stricken. 20 Ency. P. & P. 27.

In determining this question, we must consider the two other reasons assigned in the motion. It is asserted that the new matter alleged in the further reply is in no sense a direct proceeding to set aside the judgment referred to, which is the order of the court confirming the sale. Let us see. Plaintiffs in their complaint make no mention whatever of the judgment, but content themselves with -allegations “that the defendant claims, or pretends to claim, an estate or interest in and to the said mining interests so owned and held by the plaintiffs,” and that these claims are “adverse to the plaintiffs,” and are “false, fraudulent, and groundless,” and “create a cloud” upon plaintiffs’ title. They also allege that “defendant is without any right whatsoever, and that defendant has no right, title, estate, or interest” in the premises, or “any part thereof,” and they pray:

“That the said defendant be required to set forth the nature of his title, and that all adverse claims of said defendant may be determined by a decree of this court. That by said decree it be declared and adjudged that said defendant has no estate or interest whatsoever in or to that portion of said mining rights or premises.”

The nature of the claim of defendant is now known. Plaintiffs inquire what it is. The defendant in his answer sets forth his title, alleging it to be through certain legal steps taken in this court, to wit, a judgment, an execution, a sale, a confirmation thereof, and a marshal’s deed. Plaintiffs in their reply admit the judgment and the delivery of the marshal’s deed, and deny the sale, the purchase by defendant, and the confirmation by the court, and deny knowledge or information sufficient to form a belief as to the defendant’s possession, labor, expenses, etc., upon said premises, and for a further reply set up irregularities in the execution, sale, and confirmation, and allege them to have been procured by false, fraudulent, and wrongful acts and by deceit on defendant’s part, and pray “that the sale be set aside and held for naught.”

Clearly, this is not a direct proceeding to vacate the judgments and decrees of this court. Plaintiffs’ complaint does not uphold such contention, and, if the attack upon the execution sale and the order of confirmation is not direct, it must, of course, be collateral; for “a collateral attack is an attempt to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling, correcting, or modifying such judgment or decree.” 17 Am. & Eng. Ency. L. (2d Ed.) 849. The case at bar is obviously within the rule as stated.

We are therefore confronted with the query as to whether or not plaintiffs may collaterally attack this judgment. The cases seem to be divided into two classes as to grounds for attack on judgments and decrees of courts, i. e. (1) as to irregularities in the proceedings; (2) as to fraud. Plaintiffs charge in their reply that the sale was void because of certain alleged irregularities in the proceedings subsequent to judgment. Upon this question there is an almost unbroken and unanimous line of authorities, based upon the soundest principles of logic, as well as of public policy. One of the earliest Oregon cases is Mathews v. Eddy, 4 Or. 234, in which the court says:

“This court entertains the opinion that, without doing violence to any principle of law, an order of confirmation may be regarded as a final adjudication, touching the regularity of all proceedings taken in the execution, of final process. If confirmations are not thus respected, * * * an order of confirmation, under the present Code, is an idle ceremony, and the statutes which require such approval were enacted to no purpose.”

The provision of the Alaska Code of Civil Procedure is identical with that to which the court there refers. Section 283, subd. 4, provides :

“An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale as to all persons in any other action or proceedings whatever.”

The Oregon courts have, without exception, so far as we have been able to ascertain by a careful examination of the decisions, followed the case of Mathews v. Eddy, supra. Dolph v. Barney, 5 Or. 192; Wright v. Young, 6 Or. 93; MacRae v. Daviner, 8 Or. 63; Lienenweber v. Brown, 24 Or. 548, 34 Pac. 475, 38 Pac. 4; 17 Am. & Eng. Ency. L. (2d Ed.) 1017; Morrill v. Morrill, 20 Or. 96, 25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95, and notes thereto, 103. Under the Code and the authorities, then, plaintiffs may not attempt to impeach the sale and confirmation on the ground of irregularities.

But they also allege that the execution, sale, and confirmation were fraudulently, falsely, and unlawfully obtained. May they rely upon such an allegation? We think not. A party to the judgment may not himself attack it collaterally for fraud. Morrill v. Morrill, 20 Or. 96, 25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95, and notes. He has three remedies against a sale fraudulently obtained: (1) He may file objections to the sale at the confirmation. (2) He may appeal from the order of the confirmation. (3) He may bring an action to set the deed aside. _ It is a general rule of common law, and the Code of Alaska has not changed that rule, that the judgment of a court having jurisdiction over the subject-matter and the parties cannot be collaterally attacked for fraud aliunde the record by the parties or their privies. 17 Am. & Eng. Ency. L. (2d Ed.) 849. The further reply alleges no such fact. The fraud there set up went only to Thorpe, not to these plaintiffs, and therefore they do not come within the exception. Neither are they remediless. Their redress may be obtained in another suit, but they cannot attack the judgment collaterally in the reply.

The matters alleged in the further reply are not, therefore, pertinent, relevant, or material, and the pleadings, so far as the allegations contained in the “further reply to new matter set up in defendant’s answer,” fall within the ban of section 70, and should be stricken as frivolous and irrelevant. Let an order issue sustaining defendant’s motion and striking the plaintiffs’ further reply.