North v. Moore , 8 Kan. 143 ( 1871 )

The opinion of the court was delivered by

Kin&man, C. J.:

This was an action brought by defendants in error to recover a certain lot in Leavenworth. The issues were tried by the court and special findings of the facts were made, and judgment for the recovery of the lot. "Whereupon the plaintiffs in error claimed the benefit of the occupying claimant law. They were adjudged entitled thereto, and an inquiry awarded. A jury was summoned, and a return made by the jury awarding damages to plaintiffs in error. They excepted, and moved the court to set aside the assessment and valuation, which the court refused to do.

In this court five grounds of error are assigned: First, That the court erred in the conclusions of law from the facts found. Second, That the court erred in limiting the benefit of the occupying claimant law to such improvements as were made after the 28th of December, 1863. Third, In refusing to set aside the assessment made. Fourth, In refusing to settle 'and sign the case made and presented. Fifth, In refusing so to do for the reasons stated by the judge. Of these alleged errors in their order.

i. judgment, qceOTno-r” not Voidable' I. James 0. 0. Moore was the original owner of the lot. On the 5th of September, 1863, the district court of Leavenworth county made a decretal order for a conveyance of the lot in controversy to certain parties plaintiffs in a suit against said James 0. 0. Moore. On the 7th of May, 1866, this judgment was declared to die “null and void,” and of no effect whatever, for want of jurisdiction of the person of Tames C. C. Moore. Between the time of rendering these judgments, Maria J. North, one of the plaintiffs in error, became the purchaser of the lot from persons who held under the first judgment. The court below, to reach its conclusions, must have held that the persons in whose favor the judgment of September, 1863, was rendered took nothing thereby. This we suppose to be the law. The judgment was held void, not voidable. It was so held not in a collateral proceeding, but in a direct manner to have the judgment set aside. It is then relieved from those embarrassing considerations which have perplexed courts as to what effect should be given to judgments when they stood unreversed and apparently binding. The question is also freed from any .possibility of pretending that it was only voidable. It is declared void on evidence not preserved, and not before us. We know of no case where a void judgment is held to support a title. Even the case of Hammond v. Davenport, 16 Ohio St., 177, on which the plaintiff in error relies, holds the judgment to be good, although it does so on grounds that fail to convince us that it is correct. Still, it does not go so far as to hold that a void judgment conveys, of its own inherent force, any valid and legal title. This point is decided on reasoning that it would be difficult to shake in the case of Harris v. Hardeman, 14 How. S. C., 337, where the authorities are collected. These cases stand in direct conflict with the decision in Hammond v. Davenport, and are in our opinion the law. The counsel refers us to section YY of the code, and to that part of it that provides where a judgment is opened to let in a party, who is served only by publication, to defend, “ that the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, sha,11 not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment.” Considerable weight seems to have been given to a similar provision in tbe Ohio law in the decision of Hammond v. Davenport as an “ indication of legislative policy.” But we cannot perceive how a provision that protects bona fide purchasers under a valid judgment, can be twisted to mean that the legislature intended to protect purchasers under a void judgment. If any inference is to be drawn from this section, it would seem to be directly a contrary one. The legislature have expressly protected one class of purchasers, even when the judgment under which it was made is set aside. It might be inferred that by omitting a totally different class it did not intend to protect them. Those protected by section 77 are those who take under a valid judgment, obtained on a service by publication. In this case there was no judgment, for a void judgment is no judgment at all. It was an attempt to adjudicate upon the rights of Moore, without any service on him, and was a nullity. Under section 77, as a privilege, a certain class of persons are permitted to reopen a judgment lawfully obtained, and litigate the questions settled by the judgment; but they cannot have that privilege without taking it coupled with a condition that, whatever may be the result of the litigation, rights of property obtained under the judgment in good faith shall be preserved. It was perfectly competent for the legislature to prescribe the terms upon which such a privilege should be granted. But in this case no such privilege was granted. The judgment against Moore was not opened in order that the matters involved might be litigated. It was swept away as a nullity, because it had the semblance of a judgment without any jurisdiction in the court that rendered it over the rights of Moore.- He had not had his day in court. The process of the law had never reached him, and had no power over him, or his estate; and what was done under such circumstances was ooram non judice, and amounted to nothing.

s. Rin&ings _ of fact sustainaenceisnot presented, II. The evidence' in this case is not before us, nor are the facts on which the plaintiffs in error were allowed * benefits °* the occupying claimant law, farther than as they appear in the findings on the issue as to tbe title to tbe lot; and therefore we cannot say on what evidence the decision of the court limiting the claim to improvements made after Mrs. North became the purchaser was based. It may have appeared that all the improvements made anterior to that date were made by James C. C. Moore himself. If so, his heirs could not in this case be made to pay for them to the plaintiffs in error. There is nothing in the record authorizing us to decide that the court erred in tin's particular.

3. Practice; ocdomante; notice. III. The grounds urged here why the court should have set aside the assessment made by the jury are two: l.-Tkat the plaintiffs in error were entitled to reasonable notice Ume °f making such assessment, and that n0 such notice was given. 2.-The assessments were too small.

The statute makes no provision for a notice; still, as this is a separate proceeding, there can be no doubt that the party not demanding the assessment ought to have and is entitled to a reasonable notice that he may attend, and call the attention of the jury to the improvements made, and take such other action to protect his interests as the nature of the proceedings admit. A notice to the attorney of record is sufficient; for while it is a separate proceeding from the original suit, it grows out of it, and is so far dependent on it that no new process is necessary. Patterson v. Prather, 11 Ohio, 35. In this case notice was given to one of the attorneys of plaintiff in error the day before the assessment was made; and it does not appear that he made any objection to the sufficiency of the notice, or that the time was too short. It does appear by his affidavit made afterwards, that the general management of the case had been in the hands of his partner, who had the particular knowledge necessary to advise and direct as to this particular inquiry. This partner was informed of the proceedings on the morning of the day the inquiry as to the value of the improvements was made, attended the same, made no objections as to want of preparation, and was allowed time to find a person who could point out to t]ie jury the improvements to be valued, and assisted in placing evidence before them. It is too late to object to want of notice, or want of sufficient notice, when a party has appeared without objection, and has taken the chance of a satisfactory decision, has taken steps to obtain such a decision, and makes his objection only when the decision is not such as he expected or desired. By his appearance and participation he waived his right to insist on notice, or to claim that it was not a reasonable one.

4. Ex parte a®davits; verdiets. It would seem to us from the affidavits offered on the motion to set aside the assessment that the amount returned was too small, but the value of m pwrte affidavits, made ' , ™ , „ . where no opportunity is offered tor cross-examination, and by persons selected by the party offering them, is not such that they overbear the decision of twelve disinterested men selected by law to determine the very question at issue. We cannot therefore say that the verdict clearly was too small.

5. Refusal to mil of oxeepreached. IY. The fourth assignment may be considered with the fifth, for it does not make any difference whether the reason given for a decision is correct or not. It is the decision that this court can reach, not the reason given therefor. It is obvious that we cannot reach the error complained of (if it be one) on error. The facts are not presented. The relief in such cases is by mandamus.

The judgment is affirmed.

Yalentine, J., concurring. Brewer, J., not sitting.