Ollis v. Orr

QUARLES, J.

— This action was commenced by the appellants to obtain a decree declaring a certain judgment, execution sale of certain lands, and a sheriff’s deed therefor to the defendants, to be void. The judgment attacked was rendered April 13, 1893, in the district court in and for Bingham county; the execution sale thereunder was made May 27, 1893; and the sheriff’s deed bears date December 24,. 1894. ■ The judgment is attacked on the idea that the court did not obtain jurisdiction of the person of the defendant therein, Daniel Ollis, the ancestor of the appellants. The complaint is very meager, and that part which attacks the judgment is as follows, to wit: “That heretofore, to wit, on the seventh day of October, 1892, and during the lifetime of said Sample Orr, a firm composed of Sample Orr and Sample H. Orr, doing business at Blaekfoot, Idaho, under the firm name of Orr & Orr, began an action in this court against Daniel Ollis, claiming that the said Darnel Ollis was indebted to said firm; that the summons in said cause was not served on the said Daniel Ollis, but au attempted service was made by the publication of said summons in the ‘Blaekfoot News/ a newspaper published at Blaekfoot, Idaho, hut that the affidavit on which said service was ordered was insufficient, and the order is and was unauthorized and void; and that without the service of summons, and without the said Daniel Ollis being before the court, and without an opportunity to be heard, a judgment in said cause was attempted to be taken and filed herein, on the thirteenth day of April, 1893.”

It will he seen that the complaint states no fact showing want of jurisdiction in the court to render the judgment attacked. It states enough to show that the defendant was not actually served with summons, and that an attempt was made to obtain constructive service. The alleged failure of the court to obtain jurisdiction of the person of the defendant is based upon the allegation that “the affidavit on which said service was ordered is insufficient, and the order is and was unauthorized and void,” which is not a statement of facts, but of conclusions of law. The complaint did not state a cause of action. It would not support a judgment in favor of the plaintiffs.

The motion for a new trial by the plaintiffs, appellants here, was properly denied, if for no other reason, for the reason that the complaint did not state a cause of action, and would not, therefore, support a judgment in favor of the plaintiffs. The district court is a court of general jurisdiction. Every presumption and intendment of law is in favor of the regularity of a judgment of a court of general jurisdiction, and to overcome such presumption, in a suit brought to have such judgment declared void, facts must be alleged and proven showing wherein the court failed to obtain jurisdiction to render the judgment which is so attacked. This was not done in the ease at bar; wherefore the judgment and the order denying a new trial are both affirmed, with costs of appeal to respondents.

Huston, C. J., and Sullivan, J., concur.