Meinert v. Harder , 39 Or. 609 ( 1901 )

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

1. The rule in equity in this class of cases is announced by the Supreme Court of Nebraska in Bankers’ Life Ins. Co. v. Robbins, 53 Neb. 44 (73 N. W. 269), as follows : “A party against whom a judgment has been rendered by default, which judgment is void for want of jurisdiction over the person of the defendant, is not entitled to an injunction to restrain the enforcement of such judgment, unless it appears both from his pleadings and proof (1) that he has a meritorious defense to the cause of action on which the judgment is based ; (2) that he has no adequate remedy at law ; (3) and that his plight is in nowise attributable to his own neglect.”

2. Examining the complaint in the light of these necessai’y requirements, we find that, while the plaintiff alleges that at all the times mentioned he was the owner of the property which the defendant sought to recover in the justice’s court, he failed to aver that he was entitled to the possession thereof. In that forum the-action to be tried was not the ownership of the property, but the right to its possession ; and, hence, if every averment of the complaint herein be conceded to be true, the plaintiff does not show a meritorious defense to the cause of action on which the judgment complained of was rendered. The court found, however, that at and ever since the time said action was commenced in the justice’s court the plaintiff was entitled to the possession of said property ; but there is no testimony in the transcript upon which such a finding can be predicated, except that of plaintiff, who, in answer to the questions, who was the owner of the mare, the buggy, and the harness, said, in each instance, “Mine.”

3. The complaint fails to allege that the judgment complained of was in nowise attributable to plaintiff’s neglect. In a collateral attack upon a judgment the rule is pretty well settled that, if the process and service be sufficient to impart to a party who might be prejudiced thereby colorable information that he has been sued in a particular court, the judgment rendered upon such service will not be disturbed : Van Fleet, Coll. Attack, § 329. “A direct attack upon a judgment,” says Mr. Justice Cooke in Pope v. Harrison, 16 Lea, 82, “is by appropriate preceedings between the parties to it, seeking, for sufficient cause alleged, to have it annulled, reversed, vacated, or declared void.” It is held by this court in Morrill v. Morrill, 20 Or. 96 (25 Pac. 362, 11 L. R. A. 155), that a collateral attack on a judgment or decree is any proceeding that is not instituted for the express purpose of annulling or modifying such judgment of decree. In a note to that case, reported in 23 Am. St. Rep. 104, the editor, admitting that the definition thus given is as correct as a general definition can be, says, “The question most worthy of attention is not, what is a collateral attack? but is, when may an attack, though collateral, be made with success?” When a complaint, as in the case at bar, admits that a summons was served upon a party who seeks to set aside a judgment rendered in pursuance of the proof of a valid service thereof by showing dehors the record that the notice so given was insufficient, the attack upon the judgment is collateral: Baltimore & O. Ry. Co. v. North, 103 Ind. 486 (3 N. E. 144); Kleyla v. Haskett, 112 Ind. 515 (14 N. E. 387).

4. The judgment of the justice’s court shows that it is based upon a sufficient complaint, duly filed, supplemented by proof of the personal service of a valid summons upon the plaintiff in Linn County by a duly qualified officer, and hence the judgment upon its face is valid. The evidence relied upon to establish its invalidity by contradicting the constable’s return is dehors the record, and consists of what purport to be certified copies of the complaint and summons delivered to the plaintiff, an examination of which shows that “district No. 2” was inserted therein instead of “district No. 1.” While such evidence is admissible in a suit properly instituted to set aside a judgment (Huntington v. Crouter, 38 Or. 408, 72 Am. St. Rep. 726, 54 Pac. 208), it can not be considered in a proceeding to review the judgment, in which case the only question brought up by the writ is that of jurisdiction, which must be determined from an examination of the ultimate facts appearing by the record (Douglas County Road Co. v. Douglas County, 5 Or. 406; Poppleton v. Yamhill County, 8 Or. 337 ; Vincent v. Umatilla County, 14 Or. 375, 12 Pac. 732; Barton v. La Grande, 17 Or. 577, 22 Pac. 111; Smith v. City of Portland, 25 Or. 297, 35 Pac. 665 ; Tyler v. State, 28 Or. 238, 42 Pac. 518 ; Oregon Coal Co. v. Coos County, 30 Or. 308, 47 Pac. 851). The judgment complained of having been given for want of an answer, an appeal therefrom would have been unavailing: Hill’s Ann. Laws, § 536. So, too, the justice’s court was powerless to set aside the judgment after it had been rendered (Griffin v. Pitman, 8 Or. 342 ; American B. & L. Assoc. v. Fulton, 21 Or. 492, 28 Pac. 636); and hence it may be said that plaintiff did not have an adequate remedy at law. It is alleged in the complaint, and the court so finds, that the complaint and summons were changed by the defendants for the purpose of defrauding the plaintiff, but no testimony was introduced tending to support such averment, and hence the equitable power of the court to set aside the judgment upon that ground must fail.

The plaintiff having failed to allege a meritorious defense, or “that his plight is in nowise attributable to his own neglect,” the decree is reversed and remanded for such further proceedings as may be necessary and proper, not inconsistent with this opinion.

Reversed .