Harpold v. Doyle

102 P. 158, 16 Idaho 671, 1908 Ida. LEXIS 142

• Court: Idaho Supreme Court
• Decided: December 16, 1908
• Status: Published

Opinions

SULLIVAN, J.

This is an action to recover damages for a breach of promise to marry. The action was tried upon an amended and supplemental complaint and answer thereto, which answer was treated as containing denials of all of the material allegations of the amended and supplemental complaint. The cause was tried by the court before a jury and verdict was rendered and judgment entered in favor of the plaintiff for $5,000 damages and costs. A motion for a new trial was made and denied. The appeal is from the judgment and order denying a new trial.

The appeal is presented on a judgment roll which contains a bill of exceptions and only such portions of the evidence as illustrate or explain the errors assigned. Counsel for appellant assigns the following three errors, to wit:

“1. That the court erred in overruling defendant’s objections to the introduction in evidence of plaintiff’s Exhibit ‘A,’ which was a judgment roll with decree of divorce in favor of the plaintiff, Mary Harpold, against Adam Harpold, her husband.

“2. That the court erred in overruling defendant’s objection to the introduction in evidence of plaintiff’s Exhibit ‘B,’ which was a decree of divorce in favor of Mary Gainey against Timothy Gainey, Mary Gainey being the plaintiff Harpold in this ease.

“3. That the court erred in denying the motion of the defendant to strike from the records of the testimony in this cause plaintiff’s Exhibit ‘B.’ ”

A reversal of the judgment is asked on the ground that the court erred in admitting said Exhibits “A” and “B” in evidence, which exhibits were the judgment rolls in two divorce cases in which the plaintiff in this action was a party. It appears that the plaintiff was first married to a man by the name of Harpold, and she thereafter procured a decree of divorce from him in the state of California. She thereafter married a man by the name of Gainey and procured a decree of divorce from him in the district court of the first judicial district of this state for Kootenai county, and to support the allegation of her complaint to the effect that she was an unmarried woman when the defendant promised to marry her, she introduced on the trial the judgment rolls in both of those suits, over the objection of the appellant.; and defendant rests this appeal on the contention that the court erred in admitting those judgment rolls in evidence, on the ground of certain alleged defects in the service or attempted service of summons by publication, and it is contended for that reason the courts in granting said decrees of divorce had no jurisdiction to grant them.

The reversal of the judgment in this case depends upon the question whether the courts granting those decrees of divorce had jurisdiction to grant them. If those courts had jurisdiction, then the judgment must be affirmed; otherwise, the judgment must be reversed.

We will first consider the judgment roll in the case of Harpold v. Harpold, which was granted by a California court. It is contended that the service by publication was defective and void. That action was commenced on March 28, 1899. Summons was issued on the day the complaint was filed, and on that day the plaintiff filed her affidavit setting forth the facts that the defendant resided outside of the state, and after due diligence could not be found therein, and that for the two months prior to the commencement of said action, the plaijitiff had received from the defendant several business letters in which he gave his address as being Eosalia, in the state of Washington, and that said letters bore the postmark on the outside of the envelope as having been mailed at that place; and that said plaintiff had been informed by other persons who had received recent letters from the defendant that defendant’s residence was at the town of Eosalia in the state of Washington, and the defendant, after diligent search, could not be found within the state of California, and prayed for an order that service of summons might be made by publication. An order was thereafter made by the judge of the superior court in which the action was pending that the service of summons in that action be made by publication thereof, in the “Morning Press,” a newspaper of general circulation published in the city of Santa Barbara, county of Santa Barbara, state of California, and that said publication be made as often as said newspaper is published for two months and not less than once a week during said time; and it was further ordered that a copy of the complaint and a copy of the summons attached thereto be deposited in the United States postoffiee in the city of Santa Barbara, California, postpaid, directed to said defendant at Eosalia, in the state of Washington.

The business manager of said newspaper made the affidavit of publication and swears that the summons annexed to the affidavit was published in said newspaper for a period of “sixty days, commencing on the 29th day of March, A. D. 1899, and ending on the 27th day of May, 1899, both days inclusive, and in every issue of said paper during said time, to wit: On the 29, 30, 31 of March, the 1, 2, 4, 5, 6, 7,' 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30 of April, the 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26 and 27 and 28 of May.”

No question is made as to the sufficiency of the affidavit for publication of summons, but it is contended that the order of publication required the summons to be published two months, and that it was not published for that period of time, as it is recited in the decree that the summons was published for a period of sixty days only, and it is contended that the affidavit of the publisher shows that it was only published for fifty-nine days, and that even if it were published for sixty days, that was not for full two months as required by said order.

It appears that the summons was published in the “Morning Press” of Santa Barbara, the first publication being made on March 29, 1899, and it appears from the record that it was published every day that said paper was published up to and including May 28th. It seems that said paper was published every day in the week except Monday. This, it is contended, is not a two months’ publication as required by the statute. This would be two full months under the authority of the Savings & Loan Society v. Thompson, 32 Cal. 347, and while in the affidavit of the publisher it is stated that said summons was published for a period of sixty days, the affidavit thereafter sets forth each and every day that the summons was published and shows clearly that it was published for two months. The affidavit should be construed to support the validity of the judgment if it can be reasonably so construed, and it clearly appears from the entire affidavit of the publisher that said notice was published for two full months. And even if the last day of publication fell upon Siinday in the regular issue of the paper, it does not vitiate the service under the authority last cited. We therefore conclude that it appears from the judgment roll that the summons in the Harpold ease was duly and regularly served by publication, and the fact that it was cited in the decree that the summons was published for sixty days does not negative the fact shown by the proof of service that it was published for two full months. The actual time of publication of summons controls, and not the formal proof thereof. And the proof of publication should be so construed as to support the validity of the judgment, if it can be reasonably so construed.

Said summons was published in a newspaper published daily, except on Mondays. The first publication was made on March 29, 1899, and the last on May 28, 1899. This would be two full months, as the 29th day of May, the day after the last publication, would be the first day of the third month after said 29th day of March. The last day of the two-months’ period expired on the 28th. It thus appears that said summons was published on every day that could by any possibility be brought into the two calendar months extending from the 28th day of March to the 29th day of May, except, of course, Mondays, on which day said paper was not published.

In the Harpold case, it is contended that the judgment roll shows that the judgment was entered before thirty days had expired after the service of summons by publication. The judgment roll shows that the period of publication expired on May 28th, and that the judgment was not entered until the 29th of June following. It is recited at the opening of the decree that the case came on for hearing on June 28th, but the decree was not signed until June 29th. The period of publication having expired on May 28th, there would be thirty-one days from that time to June 29th, three days in May and twenty-eight days in June. The judgment might, therefore, have been legally entered on June 28th. The judgment was not rendered until after the period of publication had expired.

The admission in evidence of the judgment roll in the ease of Gainey v. Gainey is assigned as error. It appears from the judgment roll that that action was commenced on August 27, 1904. Summons was issued on the 29th day of that month and returned and filed on the 30th of the same month, and from the return it appears that the sheriff was unable to find the defendant within his county. The affidavit for publication of summons was made September 6th, and the order for publication was made September 7th. The affidavit of mailing the summons was made on the 9th and filed on the 10th of September. It appears that an alias summons was issued on the 10th and published in the St. Joe “Budget.” The affidavit of the publisher shows that the summons was published five consecutive weeks, commencing on September 16, 1904, and ending on October 14, 1904, and the findings of fact and decree were entered on November 29, 1904. It is first contended that as the summons was returned on August 30th, that from that time on there was no live process shown by the judgment roll. The alias summons was issued on September 10, 1904, and it is contended that said alias summons does not contain an impression of the seal of the court, and only contains the word “Seal” written in ink at the lower left-hand comer with an ink scroll around it. That those facts being true, the affidavit of F. C. Jones of the mailing of a copy of the summons on September 9th must be false and therefore disregarded.

The alias summons was a copy of the original, and the mailing of the copy of the original was a substantial compliance with that provision of see. 4146, Rev. Stat., which requires a copy of the summons to be mailed to the defendant. This court held in Ridenbaugh v. Sandlin, 14 Ida. 472, 125 Am. St. 175, 94 Pac. 827, that under the provisions of see. 3862, Rev. Stat., the court had control of its process and may order a summons withdrawn from the files and served after it has become a file of the court. However, it does not appear from the judgment roll whether the court in this ease ordered a withdrawal of the original summons or not. Anyway, the record shows that a copy of the summons was mailed to the defendant and we think that was sufficient. As the original summons and the alias summons were the same, it would not have been possible to mislead the defendant if a copy of either had been sent him. It is only where by reason of an incorrect notice the defendant has been misled and where he might be injuriously affected by such variance that the court will take notice of mere irregularities. Under the provisions of sec. 4231, Rev. Stat., this court is directed in every stage of an action to disregard any errors or defects in the proceedings which do not affect the substantial rights of the parties.

It is contended that the demand or notice in the summons is not in compliance with the statute. The notice is that “the plaintiff will take judgment against you for the dissolution of the bonds of matrimony between you and the plaintiff herein.” Under the provisions of sec. 4140, Rev. Stat., it is provided that the summons must contain, in actions of this kind, “a notice that unless defendant so appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint.” In the summons under consideration, it is stated that the plaintiff “will take judgment, ’ ’ and it is contended that that expression is not equivalent to “will apply to the court.” In Clark v. Palmer, 90 Cal. 504, 27 Pac. 375, it was held that the words .“plaintiff will take judgment,” was in substance a notice that he “would apply to the court for the relief demanded.” The statute of California on that subject is the same as our own. We think the notice in the summons was sufficient.

It is contended by counsel that the rule laid down in O’Neill v. Potvin, 13 Ida. 721, 93 Pac. 20, 257, to the effeet that the judgment roll, in cases where service of summons was made by publication, must contain the summons with the affidavit or proof of service and the complaint with a memorandum indorsed thereon that the default in not answering was entered, and a copy of the judgment, ought to be modified so as to require the judgment roll to contain in addition to the papers there mentioned the affidavit and order for publication of summons. A considerable portion of appellant’s brief is devoted to this point. We concede that there are reasons why we think the affidavit and order of publication should be made a part of the judgment roll, but as our statute does not require them to be so made, we are not inclined to modify that decision in that regard. Our legislature adopted said section from the code of California, and prior to its amendment by the legislature of that state, the rule laid down in Hahn v. Kelly, 34 Cal. 394, 94 Am. Dec. 742, was followed. Sec. 670 of the California Code of Civil Procedure directs what papers shall constitute the judgment roll, and was the same as see. 4456, Rev. Stat. of Idaho, until 1895, when it was amended by including in the judgment roll the affidavit for- publication of summons and the order directing the publication. Said section 4456, Rev. Stat. of this state, has not been amended, and the affidavit and order for publication of summons is not a part of the judgment roll and cannot be considered on an appeal based on the judgment roll alone.

It is contended that under the act of February 27, 1903 (Sess. Laws 1903, p. 333), entitled: “An act providing that the state and county printing and binding and stationery work of the several counties throughout the state shall be executed within the state,” it must appear that the summons was published in a paper, if published weekly, continuously and uninterruptedly in the county where it is published during a period of fifty-two consecutive weeks prior to the publication of such summons. There is nothing in that contention, as the title of said act clearly shows that the intention of the legislature in its enactment was to confine it to state and county printing.

As to the absence of the imprint of the seal of the court upon the alias summons, I think it is only fair to presume that a copy of the summons had found its way into the judgment roll. This presumption is borne out by the fact that the alias summons attached to the judgment roll ■ shows a scroll instead of the imprint of the seal, indicating very clearly that if the paper found in the judgment roll is not the original, it is a copy thereof, and the fact that the scroll is placed thereon sustains the presumption that the original must have had a seal. (Dexter v. Cochran, 17 Kan. 447; Morris v. Bunyan, 58 Kan. 210, 48 Pac. 864.) It is held by many courts that the omission of the seal is not fatal but is a mere irregularity which is amendable and does not render the process void. (20 Ency. Pl. & Pr., p. 1123.) The publication of a copy with the omission of any scroll or the word “seal” could in no manner mislead the defendant, especially where the copy is published as in this case and recites the fact that it is issued under the seal of the court.

It is contended that the publication of the summons was not for a sufficient length of time. The proof of publication shows that it was published.in a weekly newspaper and the first publication thereof made on September 16, 1904, and the last on October 14, 1904, making five publications in five consecutive weeks. Sec. 4146, Rev. Stat., provides that the publication of the summons must be made at least once a week, which publication must not be less than one month. The contention of appellant is that the period of time from September 16th to October 14th is not a calendar month. In Forsman v. Bright, 8 Ida. 467, 69 Pac. 473, this court held that a publication of summons made under proper order, which publication was made in a weekly newspaper five consecutive weeks, the first being made on July 18th and the last on August 15th, was a publication of at least one month as required by the statute. No other or further publication of the summons could have been made in the weekly issues of said paper during one month. It had been published once in every week of the weeks that could by any possibility be brought within a calendar month. The publication in a weekly paper continues the publication from one issue of the paper to the next. The one month expired on the 15th of October, and the publication of the notice in the weekly issue of the paper on the 14th of October continued the publication until the next weekly issue of the paper, unless the period of publication expired before that time, which it did in this case. That being true, there was no necessity for another publication, as the publication on October 14th covered the full period of one month. This is sufficient under the decisions in Forsman v. Bright, 8 Ida. 467, 69 Pac. 473; Ronkendorff v. Taylor, 4 Pet. (U. S.) 349, 7 L. ed. 882; Savings & Loan Soc. v. Thompson, 32 Cal. 347.

Counsel contend. that there is a clear difference of presumption as to the verity of judgments of courts of general jurisdiction when the service of summons is made personally and when it is made by publication. After jurisdiction is once obtained, there is no such difference of presumption. (Amy v. Amy, 12 Utah, 278, 42 Pac. 1121.)

In the Savings & Loan Soc. v. Thompson, 32 Cal. 347, referring to the publication of a summons in a weekly paper, the court said: “It had been published every week for the weeks that could by any possibility, in whole or in part, be brought into the three calendar months.” As we understand it, this has been the rule followed by the California supreme court, and as we adopted the statute of California in regard to the publication of summons, we adopted the rule of construction placed upon that section by the supreme court of that state before it was so adopted, and I think it would have a tendency to endanger and unsettle titles and the social status of parties now to change that rule by a court decision. As we understand it, this has been the rule of decision by many of the courts in this state, and to now hold that the first and last publication must be a month apart would not only endanger titles to real estate, but affect the personal status of many persons. Mr. Beal, in his Cardinal Rules of Legal Interpretation, 2d ed., at page 20, under the head of “Long-standing Decisions. Stare Decisis,” states: “It is extremely dangerous to shake the authority of long established decided cases,” and quotes from Young v. Robertson, [1862] 4 Marcq. H. L. 314, as follows:

“There is another duty incumbent on all courts, and preeminently upon a court of ultimate appeal, and which has been invariably observed, namely, that as regards those rules which regulate the settlement and devolution of property, those courts which have to interpret instruments and acts of parties must take care to be very guarded against letting any supposed notions as to the inaccuracy of any rule which has in fact been acted upon induce them to alter it so as to endanger the security of property and titles.”

For this court to now hold that in the service of summons by publication in a weekly newspaper, the first and last publications must be a month apart, would place a different construction upon that provision of see. 4146 which provides that when a summons is served by publication, such publication must be at least once a week for not less than one month; would overrule the case of Forsman, v. Bright, 8 Ida. 467; and would unsettle and overturn many eases in the state where judgment has been obtained under service of summons by publication, and we deem it unwise to do so. It is now with the legislature to so amend said section as to require the first and last publications of the summons to be made at least a month apart, if it is desirous .of having that done. Making the change in that way would not unsettle or disturb judgments based upon service by publication, in accordance with the rule laid down in said case of Forsman v. Bright, supra. In the case of Amy v. Amy, 12 Utah, 278, 42 Pac. 1121, the court said:

“Why, on principle, two judgments in the same court of general jurisdiction, in due form, should be entitled to different presumptions respecting the verity of the record, simply because one is against a nonresident, where the proceeding is in rem, is a question, the proper solution of which no court has successfully attempted.”

The doctrine laid down there is approved by Mr. Freeman in his work on Judgments, sec. 127, where he says:

“The tendency of recent decisions is to strengthen the position that the orders and proceedings of courts of general jurisdiction, where process is constructively served, are supported by the same presumptions as where the court proceeds upon personal service, and can no more be avoided for mere errors and irregularities than can its other orders and judgments. ’ ’

These presumptions go to the verity of the orders and decrees of the court after it has obtained jurisdiction, and the court should examine the proof of service of summons by publication very carefully and see that the law is substantially complied with before making any orders or proceeding in the ease.

Under the provisions of subd. 1 of see. 4456, Rev. Stat.,. the judgment roll, in case the complaint is not answered, must contain, among other papers, the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered. And it is contended that as such default is not indorsed on the complaint in the Gainey ease, it was error to admit said judgment roll in evidence. It is the duty of the clerk to make such indorsement and if he neglects to do so, it is a mere irregularity that cannot be taken advantage of in a collateral attack on the judgment, and especially is that true where the judgment recites that the default of the defendant was duly entered. If the service of summons was complete, jurisdiction had been obtained over the defendant, and the failure of the clerk to indorse on the complaint a formal default can in no way affect the jurisdiction of the court. In the Gainey case, both the findings of fact and decree recite the fact that the default of the defendant had been duly entered. The court in its findings of fact, as well as in the decree, has found that the defendant was in default for want of an answer, and those recitals must be taken as conclusive upon that point, unless it appears upon the face of the judgment roll that such recitals are not true. It was held in Amy v. Amy, 12 Utah, 278, 42 Pac. 1121, that every matter adjudicated in a suit becomes a part of the record which henceforth proves itself without referring to the evidence which has been adjudicated. The entry of the default was no part of the service of summons. The defendant derives no benefit from its entry, neither is he prejudiced by the failure of the clerk to indorse his default upon the complaint. When the service of summons is properly made, it is a mere irregularity or omission in the exercise of jurisdiction and cannot be attacked collaterally. It has been held that an entry of judgment before the time for answering had expired in eases where the publication of the summons was made is merely irregular and does not subject the judgment to collateral attack. (White v. Crow, 110 U. S. 183, 4 Sup. Ct. 71, 28 U. ed. 113; In re Newman’s Estate, 75 Cal. 213, 16 Pac. 887.) The rule is well established that where the court has jurisdiction of the subject matter and the person of the defendant, the judgment is not subject to a collateral attack. The indorsement of default on the complaint is no part of the procedure necessary to obtain jurisdiction. There either was or was not a default, and it is the fact as to the default and not the formal entry thereof that controls. It was held in Drake v. Devenick, 45 Cal. 455, that a valid judgment by default may be rendered by the court though no formal default has been entered, and that the only purpose of a default is to limit the time during which the defendant may file his answer, and that time never extends beyond a trial and judgment. (Herman v. Santee, 103 Cal. 519, 42 Am. St. 145, 37 Pac. 509.)

' It was urged on the oral argument of this ease that the defendant is estopped from defending in this action on the ground of the invalidity of the decrees of divorce referred to, for the reason that he knew the exact status of the plaintiff so far as her divorces from her husbands were concerned. It appears from the evidence before us that the plaintiff and defendant discussed the fact of her having procured divorces from her former husbands, and that he had examined the decrees in both cases, and was satisfied that the respondent was free to marry again. That being true, it is contended that the subsequent acts of the defendant and his relations with the plaintiff were such that it would be most unjust and inequitable to permit him to defeat this action upon a mere technicality; that he is now seeking the benefit and protection of an attack upon the very decree in which he manifested such an unusual interest at the time he commenced his courtship. What rights had he acquired prior to the decrees that can be affected by permitting them to stand? He has not been prejudiced and cannot be prejudiced in any particular by upholding said decrees, save as he may be compelled to answer for the wrongs done by him to the respondent, not before, but after the decrees. He cannot be permitted by any principle of justice to attack these decrees unless it is made to appear that his interests would be prejudiced or injuriously affected by the enforcement of the judgment, which interests must have accrued prior to the rendition thereof, and this has not been done. It is stated in 23 Cyc., p. 1068, that a stranger to the record is not prohibited from impeaching the judgment in a collateral proceeding, but in order to do so, he must show that he has rights and claims or interests which would be prejudiced or injuriously affected by the enforcement of the judgment which accrued prior to its rendition. The article in Cyc. was prepared by the author of Black on Judgments. It does not appear from the record before us that the appellant had any interests or rights or claims which existed prior to the

\ rendition of either of the decrees of divorce referred to, which have been or can be injuriously affected by said decrees. The acts on which this suit is based were done and performed by the defendant some time after the entry of the decrees referred to. Mr. Black further states in said article that rules permitting assaults upon judgments at all times and by all persons would in many cases subject the administration of law and justice to restrictions and limitations that are against every consideration of public policy.

The attack of appellant upon said decrees is collateral, and collateral assaults on judgments of courts of general jurisdiction are not favored in law where the judgment determines the personal or social status of the parties, and are not favored in any case where the equities are upon the side of the party attempting to uphold the validity of a decree. (Amy v. Amy, supra.)

The court did not err in admitting in evidence the judgment rolls above referred to. "We find no reversible error in the record. The judgment is therefore affirmed, with costs in favor of the respondent.