Campbell v. Coulston

124 N.W. 689, 19 N.D. 645, 1910 N.D. LEXIS 8

Opinions

Fisk, J.

That in an appeal from an order of the district court of Burleigh county dated September 28, 1907, vacating a judgment entered on July 8, 1885, by the territorial district court in said county.

The facts necessary to an understanding of the questions involved are as follows:

The judgment thus vacated was rendered in an action claimed to have been commenced by appellant against one Coulston for the foreclosure of a mortgage executed by one Patterson and wife covering 3,04.0 acres of real property in Burleigh county to secure a note of $5,000; such land having been conveyed subsequent to such mortgage to the said Coulston. On August 10, 1906, Coulston executed, for a stated 'consideration of $1.00 and other valuable consideration,” a quitclaim deed of the lands to respondent Bull, who in April, 1907, procured from the judge of the district court of the Sixth judicial district an order requiring appellant to show cause “why the judgment and decree in this action should not be set aside and canceled of record on the ground .that the court had no jurisdiction to enter said judgment and decree.” Respondent based his sole right to move for the vacation of such judgment upon the quitclaim deed aforesaid, and he bases his right to such relief upon the sole ground “that the court has no jurisdiction to enter such judgment and decree, which want of jurisdiction appears on the face of said judgment and the judgment roll.” The particular jurisdictional defect relied on was and is, alleged insufficiency of the affidavit for an order for publication of the summons in not stating any facts showing that the defendant, after due diligence, could not be found within the jurisdiction of the court.

The only service made on appellant of the order to show cause was by mailing in a registered letter a copy thereof addressed to him at St. Louis, Mo.

On May 21, 1907, plaintiff appeared specially before the district court and moved_for the vacation of such order upon the grounds, among others, “(2) that the service of the order to show cause was entirely insufficient to give the court issuing the order jurisdiction; (3) that the district court of the Sixth'judicial district of the state of North Dakota is not the court in which the action in which the order to show cause was issued, was commenced, or in which the decree which it was sought to vacate was entered, or the legal successor of said court, and that it was without jurisdiction to hear or determine any proceedings affecting the decree; (4) that it does not appear from the moving papers that Bull was a party to said action or the successor in interest of a party or entitled in any manner to move or proceed in said action; * * * (C) that, owing to lapse of time, the judgment in said action was final and could not be disturbed; and that (7) the matters presented by Bull’s application could not in any event be properly determined upon a summary application of this character or in any manner other than by civil action.” This motion was denied, whereupon plaintiff filed a return to the order to show cause, in which he set forth at length many facts and reasons why the relief asked.by the respondent Bull should not be granted. We deem it unnecessary to incorporate such return herein. 1

It conclusively appears that defendant Coulston was personally served with a copy of the summons and complaint at his home in Philadelphia, Pa., and had ample opportunity, if he desired, to appear and defend the foreclosure suit, but he suffered a default, and at no time during the long period of time has he sought in any manner to question the validity of such decree. That plaintiff possessed a meritorious cause of action is questioned neither by Coulston nor Bull, his grantee.

Pursuant to such decree of foreclosure, these lands were struck off at public sale to plaintiff on August 22, 1885, for the sum of $5,-433.26, which sale was confirmed by an order of the district court dated September 2, 1885, and on October 11, 1886, a sheriff’s deed in due form of the premises aforesaid was executed and delivered to the plaintiff by the sheriff of said county, which sheriff’s deed was duly recorded on October 13, 1886, ever since which time plaintiff has in good faith claimed to be the owner of said lands and has exercised acts of ownership therein by the payment of taxes and otherwise.

It is thus apparent that Respondent Bull stands before this court in the inequitable position of attempting to obtain through a mere technicality, namely, a defect in the affidavit for publication of the summons, and in the light of the strongest possible equities in plaintiff’s favor, and at a time nearly 22 years subsequent to the entry oi judgment, affirmative equitable relief by motion with the ultimate end in view of obtaining a large and valuable tract of land, which apparently had been abandoned by his grantor, and this without so much as tendering or being required to pay any portion of the mortgage debt, or reimbursing the plaintiff for the taxes paid. A case more destitute of equity cannot well be imagined. It would therefore seem plain that the relief prayed for should not be granted unless the movant has shown a clear, legal right thereto. Is he entitled to such relief as a matter of strict legal right? We think not. Conceding, for the sake of argument, that the judgment is void, the respondent, by his motion to vacate the same, invokes the equitable powers of the court to the same extent as though he had resorted to an action in equity to cancel such judgment as a cloud upon his title, or had brought an action to quiet title or to determine adverse claims. Whether the court would entertain such motion or compel the movant to resort to his remedy by action in equity was discretionary, but, under the particular facts in this case, we hold that it was manifestly an abuse of discretion to permit respondent to proceed by motion instead of by an action. Bull being a stranger to the judgment, but claiming to have purchased defendant’s rights in the subject-matter of the action, the court is called upon, as stated by appellant’s counsel, “to decide a question of fact having no relation whatever to the question whether the judgment is void.” That question of fact is whether the moving party has as a matter of fact and law secured the title of the defendant to the subject-matter affected by the judgment. This important question of fact has to be tried on affidavits, and, what is more, it may in many instances be tried in the absence of the real party who owns the subject-matter. In the light of these facts, the language of that eminent jurist, Judge Mitchell of the Minnesota Supreme Court, is particularly applicable. We quote: ‘‘We think that a judgment absolutely void for want of jurisdiction appearing on its face may be set aside on the motion of any person who, although not a party to the action, has an interest in the property upon which it is a cloud. Such a motion is not, strictly speaking, a proceeding in the action, but an application to have the records purged of an unauthorized and illegal entry. Hervey v. Edmunds, 68 N. C. 243; Blodget v. Blodget, 42 How. Prac. (N. Y.) 19; Mills v. Dickson, 6 Rich. Law (S. C.) 487; Milnor v. Milnor, 9 N. J. Law, 93; Hunter v. Stove Co., 31 Minn. 511, 18 N. W. 645. But such a practice is liable to encourage the intermeddling of strangers, and is subject to the possible danger of affecting the rights of parties not before the court, and therefore to be indulged in very cautiously. Moreover, one not a party to the action is not entitled as a matter of right to such relief. The granting of it is a matter wholly within the sound discretion of the court. There is no necessity for granting such relief, for a judgment, void on its face, can neither affect, impair, nor create rights, and is always and everywhere open to collateral at tack.” Mueller v. Reimer, 46 Minn. 314, 48 N. W. 1120. To the same effect is the holding in Wisconsin, where, in speaking for the court, Dodge, J., said: “Although void, the court would not be bound to set the judgment aside upon motion, unless it appeared to be inequitable. Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322. Hence an application to set it aside in a measure always appeals to the equitable power and discretion of the court-” Reeves & Co. v. Kroll, 133 Wis. 196, 113 N. W. 440. And in Purcell v. Kleaver, supra, the Wisconsin court used the following pertinent language: “Equity little heeds the complaint of one impeded-by a judgment which is merely void, but not unjust, but leaves him to struggle with his embarrassment as best he may at law.” It is difficult to imagine any case where the facts more imperatively demand the application of the foregoing rule than the case at bar, and we entertain no doubt that the court below abused its discretion in entertaining and granting respondent’s motion, after such a long lapse of time, nearly 22 years after the entry of judgment. Respondent by selecting his remedy by motion should not be permitted to obtain relief which manifestly would be refused him if he resorted to an action in equity. To say the least, his demand is grossly inequitable, and he does not come before the court with clean hands.

Thus far we have assumed that the lower court had jurisdiction to entertain the motion within the exercises of sound judicial discretion; and while the conclusions above reached, that such discretion was abused in granting respondent’s motion, sufficiently disposes of this appeal, we desire to place our decision partly on another ground which we think equally conclusive in requiring a reversal of the order appealed from, and that is that the court below possessed no jurisdiction to vacate the judgment of the territorial court. As before stated, the purported judgment was rendered in the territorial district court on July 8, 1885. No appeal nor other steps were ever taken prior to statehood looking to any relief therefrom. In fact, the motion made in 1907 in the court below, which resulted in the order complained of, is the only attack ever made by any person upon such judgment. There can be no escape from the conclusion that the state district court is not the court which rendered such judgment, and hence it was without jurisdiction to vacate or annul the same on motion, unless such jurisdiction was in some manner conferred upon it so to do. It is asserted that it is the successor of the territorial court, and as such has the requisite jurisdiction to entertain such motion. But, as will here^ after be seen, it is the successor of the territorial court to the extent only that it has been made such by competent authority- The only competent authority for creating the state court the successor of the territorial court is that of the United States government and the state acting together. In other words, the territorial courts were the creatures of the general government, and were created by Congress pursuant to the clause of the United States 'Constitution which empowers Congress to make all needful rules and regulations respecting territory belonging to the United States. McAllister v. United States, 141 U. S. 174, (Co-op.) 183, 11 Sup. Ct. 949, 35 L. Ed. 693. It inevitably follows, therefore, that the state cannot without the consent of Congress, either express or implied, confer upon its courts jurisdiction over the actions, judgments, or records of such territorial courts. It is equally plain that Congress has no power to prescribe the jurisdiction of the state' courts, for they are exclusively the creatures of the sovereign power of the state. Such is the express holding of the United States Supreme Court in Hunt v. Palao, 4 How. 589, 590, 11 L. Ed. 1115, and Benner v. Porter, 9 How. 235, 13 L. Ed. 119. In the former case it was said: “A state law could not validly declare the records of a court of a territory, which is a court under the laws of the United States, to be a part of the records of its own state court. If the law of Florida had placed the territorial records in the custody of the state court, this would not have made them the records of that court, nor authorized any proceedings upon them. The territorial court was a court of the United States, and the control over its records belongs to the general government, and not to the state authorities, and it rests with Congress to declare to what tribunal these records and proceedings shall be transferred, and how these judgments shall be carried into execution, or reviewed upon writ of error.” In the latter case it was among other things said: “On the admission of a territorial government into the union as a state, the concurrence of both the federal and state governments would seem to be required in the transfer of the records, in cases of appropriate state jurisdiction, from the old to the new government. An act of Congress would be incapable of passing them under the state jurisdiction, as would be an act of the Legislature of the state to take the' records out of the custody of the federal government. Both should concur.” Congress saw fit to give its express consent to the exercise of such jurisdiction by the state courts only in certain pending cases. Enabling Act 23, makes the United States Circuit and District Courts the successors of the territorial courts in all pending cases, proceedings, and matters whereof such courts might have had jurisdiction had they existed at the time of the commencement of such cases; and in respect to all other pending cases, proceedings, and matters the state courts are made the successors of such territorial courts. It is provided, however, that in all civil actions in which the United State-s is not a party, transfers to the circuit and district courts of the United States shall not be made, except upon written request of one of the parties, and that, in the absence of such request, such cases shall be proceeded with in the proper state court. Miller v. Sunde, 1 N. D. 1, 44 N. W. 301; Gull River Lumber Co. v. School District, 1 N. D. 408, 48 N. W. 340.

It is entirely clear that the action here involved is one whereof the JJnited States Circuit Court might have had jurisdiction had such court existed at the time the action was commenced, provided the necessary diverse citizenship of the parties existed, a fact not controverted- The fact that neither party was a citizen of Dakota Territory is immaterial. Jurisdiction of the federal court, had such court existed, would have been complete if plaintiff and defendant were citizens of different states. That such diverse citizenship in fact existed is; we think, at least impliedly admitted, but whether this be true or not, it is sufficient, for the purposes of the point now under consideration, that the federal court might, depending on extrinsic facts, have had jurisdiction. See Act Cong. March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 508), and 4 Encyc. of U. S. Sup. Ct. Rep. 936, and cases cited; also 11 Cyc. 949; 960; Grove v. Grove (C. C.) 93 Fed. 865; Merrihew v. Fort (C. C.) 98 Fed. 899. Assuming the existence of facts conferring jurisdiction on the federal court, if it was still a pending case, plaintiff would have had the undoubted right guaranteed to him by Congress to 'have had it transferred to and disposed of in the federal court. In view of the careful manner in which Congress has safeguarded such right to removal in pending cases of the character of this one. is it possible that they intended to leave the rights of non-residents as to judgments in actions which had ceased to be pending long prior to the admission of the territory as a state, subject to hostile action by state courts? We think not. Congress did not make, nor intend to make, the state court the successor of the territorial court for the purpose of exercising jurisdiction, except in pending cases. This is apparent from the language used in the enabling act. 'There is nothing in the opinion in Bank v. Braithwaite, 7 N. D. 358, 75 N. W. 244, 66 Am. St. Rep. 653, inconsistent with these views. The question there was whether the state court had jurisdiction to enforce a territorial judgment where the action had ceased to be pending at the date of statehood. It was held that it had such jurisdiction, but the court was careful to limit its decision to the precise question there involved. We quote: “As to actions which were no longer pending, there was no reason for-providing that jurisdiction over such cases should be transferred to the federal courts. * * * In such cases the merits would no longer remain open to investigation, and therefore there would be no reason for taking jurisdiction of those cases away from the courts. No prejudicial, hostile state action could be apprehended.” To the same effect is the holding of the United States Supreme Court in Glaspell v. Railroad Co., 144 U. S. 211, 12 Sup. Ct. 593, 36 L. Ed. 409. We quote from the opinion as follows: “The record of cases of exclusive federal jurisdiction which have gone to judgment should indeed be transmitted to the circuit court, and the judgment there enforced; but, where final judgment has been rendered in cases of concurrent jurisdiction, no reason can be assigned for, nor do the terms of the act of Congress contemplate, such a transfer.” If the state court possessed the right to annihilate the judgment as was done in this case, how can it be'said that “in such cases the merits would no longer remain open to investigation, and therefore there would be no reason for taking jurisdiction of those cases away from the state courts. No prejudicial, hostile state action could be apprehended.”

The action of the lower court was most certainly prejudicial and hostile to plaintiff, and this is true whether the judgment be deemed by the state court to be void or merely voidable. In either event, the state court assumed to exercise jurisdiction not conferred upon it, either expressly or impliedly. We feel confident that the state court had no jurisdiction to proceed by motion, as it did, to inquire into the validity of such judgment. It .could do so only by an appropriate action.

For the foregoing reasons, the order appealed from is reversed.

Ellsworth, J., being disqualified, took no part in the foregoing decision, Judge Crawford of the district bench sitting in his place by request.