Conner v. W. C. Bowman Lumber Co.

McClendon, C. J.

Motion by defendant in error, plaintiff below, to dismiss the writ of error on the ground that the questions presented have become .moot since the judgment was rendered in the trial court, by reason of the fact that defendant in error had prior to the writ of error proceeding brought a proceeding in the trial court to set aside the judgment, alleging that it was void on acount of defective citation.

The motion is verified and the facts alleged are not controverted. From the transcript and the motion the following facts appear (the parties will be referred to as plaintiff and defendant):

Plaintiff brought the suit March 30, 1931, seeking judgment upon a promissory note and foreclosure of a lien on real estate. Citation was served on defendant March 31,1931. Defendant did not answer and judgment by default was rendered May 22, 1931. The term of court ended June 6, 1931. Thereafter defendant’s attorney wrote plaintiff’s attorney, “that there was an irregularity in the citation that was served upon the defendant James Conner and in such letter assured affiant that said irregularity would vitiate the judgment which was had on said citation.” Defendant’s attorney replied, offering to file a motion to vacate the judgment, and asked defendant’s attorney “if he would appear and answer in said cause, and save the expense of re-citing the defendant.” Defendant’s attorney replied that h'e would answer provided the case was continued for about a year. This plaintiff’s attorney was unwilling to do, and thereupon, on June 24, 1931, plaintiff filed a motion setting up the defect in citation, which consisted in a wrong date at which defendant was cited to appear and answer; and alleging that the judgment was taken in ignorance of said defect, and “that because of the defects in said citation the said judgment is void and uneffective.” The prayer was for citation and that the judgment be set aside and the cause reopened for trial, “giving defendant a proper and legal opportunity to defend herein.” Citation was issued upon this motion June 27, 1931, and served upon the defendant August 25, 1931. The petition for writ of error was filed September 23, 1931, and service had thereon September 25, 1931. On September 29, 1931, defendant filed a contest of the motion to set aside the judgment, containing the following: (1) A demurrer to the jurisdiction of the court; (2) a general denial; and (3) a plea to the jurisdiction, based upon the pendency of the writ of error proceeding.

It will thus be seen that the defendant is in the anomalous position of urging in this court the reversal of the judgment through writ of error proceedings based upon irregularities in the citation upon which the judgment was based, and contesting in the trial court a proceeding brought by the plaintiff with a view of according defendant the same relief he seeks in the writ of error proceeding. Plaintiff in the proceeding in the district court concedes that he has a void judgment and is endeavoring to get it set aside so that defendant may be accorded every right which the writ of error, if successful, would obtain for him. Plaintiff alleges that the writ of error was sued out for delay only. If it has any other purpose, the record before us does not disclose it. Clearly it seems to us an abuse of legal processes to burden the docket of the appellate court with a proceeding seeking to set aside the judgment when the prevailing party has already instituted a proceeding to set it aside, admitting that it was void and not binding upon the defendant.

The motion is granted, and writ of error is dismissed.

Motion granted; writ dismissed.