Mosby ex rel. Mosby v. Gisborn

54 P. 121, 17 Utah 257, 1898 Utah LEXIS 66

• Court: Utah Supreme Court
• Decided: August 16, 1898
• Docket: No. 948
• Status: Published

Opinion

Zane, C. J.

(after stating the facts):

Counsel for defendants insist that the district court sitting in Salt Lake county did not have jurisdiction to try the cause of action set up in the complaint, for the reason that the vacation of the decree and the cancellation of the deed described would affect defendants’ title to the Geyser mining claim, situated in Tooele county; and for the further reason that the complaint also asks that the plaintiff may be declared the owner of, and entitled to the possession of, the one-half interest in that claim, and that the defendant company may be required to convey the same to the plaintiff; and also for the further reason that the complaint prayed the court to adjudge the order of the probate court of Tooele county purporting to appoint Emerine Dressier, guardian of Daniel S. Mosby and his estate absolutely void. The principal ground upon which plaintiff’s right of action is based was an alleged fraudulent scheme concocted by the defendant Gisborn, and false representations and statements to Mrs. Dressier, and the concealment of Daniel S. Mosby’s title to the Geyser claim, and by false representations in the complaint in the case in which the decree complained of was entered, and by false testimony before the court; by all of which plaintiff’s rights were prevented from being set up, and the evidence to establish them kept from the court. This alleged scheme also included the appointment of Mrs. Dressier guardian of Mosby. From the allegations of the complaint and the findings of fact by the court in this case the fraudulent scheme was quite comprehensive. And when the plan resulted in deceiving the court, and in the fraudulent decree, sought to be set aside, the plaintiff’s right of action arose. The execution of the deed also appears to be a part of the same fraudulent design. The various facts stated in the complaint appear to be pertinent, and, when the execution of the fraudulent scheme culminated in the decree, plaintiff’s right of action came into existence, and it arose in Salt Lake county.

Reference is made to the constitutional provision designating the county in which actions must be brought and tried. The language is, “All . civil and criminal business arising in any county, must be tried in such county unless a change of venue be taken, in such cases as may be provided by law.” Const, art. 8 § 5. The phrase 'civil business” means such civil business as amounts to a cause of action, as the law defines a cause of action, and by “criminal business” is meant such conduct, attended with such intent, as amounts to a crime, as the law defines a crime. It would seem that when Gisborn’s false representations, his concealment, and his false testimony resulted in preventing Mosby’s title from being set up, and the evidence that would have established it, and in deceiving and misleading the court, and in the decree depriving him of Ms title, his right of action arose, and, the decree being rendered in Salt Lake county, Mosby’s right of action must have arisen in that county. Konold v. Railway Co. 216 Utah 151, referred to, was commenced in Weber county, Utah, to recover damages in consequence of an injury caused by the explosion of a boiler on one of the company’s engines in Emery county. It was alleged that the explosion occurred from the negligence of the company. The court held the cause of action arose in the latter county, and that it should have been commenced there, and ordered the action to be dismissed. Reference is also made to Irrigation Co. v. McIntyre, 16 Utah, 398. In that case it appeared that the defendants diverted the waters of the Sevier river in San Pete county, depriving the plaintiffs, who had made a prior appropriation, of their right to divert and use the waters of the same river 60 miles below, in Millard county. The court held that there was but one cause of action, and that it arose in Millard county, and intimated that it might also have been brought in San Pete county, where the wrongful diversion of the water from the river occurred. Unless the plaintiffs had a right to the water that the defendants diverted in San Pete county, and the diversion there was an injury io them there that gave them a right of action, and the injury that resulted to them in Millard county was not essential to that cause of action, it is difficult to understand how the right of action could be regarded as arising in San Pete county as well as in Millard. Conceding that the action might have been brought, at common law, either in the county where the wrongful act occurred or m the county where the land was injured in consequence of that act, it is difficult to understand how such right .of action could arise at different times and in different counties under the constitutional provision quoted, which requires the action to be brought in the county in which the cause of action arises. The plaintiffs did not have a right of action until they were injured, and it would appear that they were deprived of the water to irrigate their lands in Mil lard county. The defendants’ wrongful act resulted in injury there. Because one fact essential to a cause of action may occur in one county and another essential fact in another, it does not, under the constitutional provision, give a right of action in either. The cause of action arises when and where the last fact essential to it occurs, and not until them. As soon as it occurs the right of action arises, and the county in which the cause of action arises in the one in which to bring the suit. The constitution appears to have changed the common-law rule in such cases. However, it is not necessary to' determine in this case whether the action could have been commenced in either county.

In the case of Brown v. Bach, Utah, , the court held that a promissory note executed and delivered in Tooele county, and made payable in Salt Lake county, should be sued on in the latter, where the breach occurred, and not in the former, where the note was made. The execution of the note and its breach were facts essential to the cause of action. One accrued in one county, and the other in another. It is urged, however, that plaintiff’s complaint includes not only a prayer for the vacation of the decree and cancellation of the deed, but also asks that he may be adjudged the owner of the one-half interest' in the property, and entitled to its possession. A cause of action for an injury to real estate by trespass, waste, or by forcible entry or wrongfully taking possession thereof, or for wrongfully with-holding possession thereof, must arise from some act, or some omission to act, upon the land, and with respect to it, by which the plaintiff’s right to it is violated. The violation of right, or the wrong which gives the plaintiff a cause of action, must accrue where the land is. Such causes of action must necessarily arise in the county in which the land is situated. They are necessarily local actions, and remain so under the constitutional provision. Local actions embrace actions for the possession of land, or damages for actual trespass or waste, for nuisance to a house, for disturbance of right of way, for the diversion of water courses, and the like. Such causes of action must arise where the property is, and in the county in which it is situated. This action was brought to remove a cloud from plaintiff’s title by annulling the decree and canceling the deed described. The object of his action was the protection of his title. It is not an action for the actual possession of an undivided one-half of the claim, nor for damages for a trespass upon it, or injury to it. If, when the title is perfected, the defendants shall refuse possession, a proceeding for the possession will be necessary. The act that will authorize such a proceeding will occur on or at the land. It is also urged that this action should have been commenced in Tooele county, because the court is asked to declare the order appointing Emerine Dressier guardian of the plaintiff, and the letters issued to her of no effect. If the order is void, it can be so held in whatever jurisdiction it may b'e relied.on, and, of course, the letters can have no effect unless a valid order authorizing their issuance exist. We are of the opinion that this action was properly brought in Salt Lake county. Johnson v. Gibson, 116 Ill. 294; Massie v. Watts, 6 Cranch 148.

Counsel for the respondents contend that the decree sought to be set aside is not void; that the plaintiff, by this action, has made a collateral attack upon it; and that the relief he asks for that reason cannot be granted. It is undoubtedly true that a judgment or decree cannot be set aside when the attack upon it is collateral, unless it is absolutely void. The question is raised, is this action a direct proceeding to set the decree aside? Motions and bills in chancery to set judgments aside, and appeals or writs of error to reverse them, are direct proceedings. That is the direct purpose of such proceedings. Their aim is the vacation of the judgment, and not a collateral one. The attack on the judgment in that case is not incidental to the object of the proceeding. The end of the proceeding is not something collateral to the judgment. A denial of the legal and binding effect of a judgment in a proceeding not instituted for the purpose of annulling or changing it, or of enjoining its execution, must be characterized as a collateral attack upon it. This action, brought to set the decree aside, must be regarded as a direct attack upon it. Morrill v. Morrill, 20 Or. 96; 12 Am. & Eng. Law, 147; Owens v. Ranstead, 22 Ill. 162; McCampbell v. Durst, (Tex. Sup.) 11 S. W. 380; Van Fleet, Coll. Attack, § 2.

Counsel for plaintiff insist, further, that the order of the probate court of March 2,1893, appointing Emerine Dressier guardian of the person and estate of Daniel S. Mosby, was absolutely void, and that the court for that reason did not at any time acquire jurisdiction of the case of G-is-born against Emerine Dressier, as guardian of his person and estate, and that the decree entered was therefore void. The court below found, and it is conceded, that Daniel S. Mosby, at the time the order was made, and from thence hitherto, and for several years previous, was insane, and confined in an asylum in New Mexico. That being so, the laws of the late territory of Utah required the probate court of Tooele county, before making the order appointing the guardian, to give notice to all persons interested, in such manner as the court should order, by publication or otherwise. Comp. Laws Utah 1888, § 4347. The law required the court to specify in its order the notice, and to require it to be given by publication in a newspaper, by posting, or by personal service, and to state therein whether it should be published in a newspaper or be posted, or by both, or whether personal service should be made, and in either case to state how long, and, if by posting, where, and in how many places. The order named the time and place for the hearing of the application for the appointment, and then directed “the clerk to cause due publication thereof to be given as prescribed by law, that all persons interested might appear and oppose the petition.” When notice by publication or posting is given, it is substituted for personal service, and the law must be strictly pursued; and, if any requirements of the law is omitted, the service will be fatally defective. “If jurisdiction of the person of the defendant is to be acquired by publication of the summons in'lieu of personal service, the mode prescribed must be strictly pursued.” Galpin v. Page, 18 Wall. 350; Bardsley v. Hines, 33 Iowa 157; Park v. Higbee, 6 Utah 414; Hathaway v. Clark, 5 Pick, 490; Chase v. Hathaway, 14 Mass. 222.

The court found that the application of Emerine Dressier for such letters of guardianship was never served upon Daniel S. Mosby, nor upon any one in whose care or custody he was, nor was there any proof of such service made to the probate court before the order was made. By this case a direct attack was made on the order requiring notice of the application for letters of guardianship to Mrs. Dressier. And it appears from the evidence this order was fatally defective, because it simply directed the clerk to cause due notice thereof to be given as prescribed by law. The court was not authorized to intrust to the clerk wbat would be due notice as prescribed by law. Eichhoff v. Eichhoff, 107 Cal. 42; Freem. Judgm. (3d Ed.) 495. In Eichhoff v. Eichhoff, supra, the court said: 7 “Says Freeman [Freem. Judgm.], at section 495, speaking of judgments entered without notice to defendant: ‘But proceedings in equity are peculiarly appropriate for the exposure of this infirmity. They permit of the formation of issues upon the question of service of process, and of the trial of those issues after full opportunity has been given to those who seek to sustain, as well as those who seek to avoid, the judgment. If at such trial it satisfactorily appears that the defendant was not summoned, and had no notice of the suit, a sufficient excuse is shown for his neglect to defend, and equity will not allow the judgment, if unjust, to be used against him, no matter what jurisdictional recitals it contains.’ ”

Finally, appellant’s counsel urge fraud as a ground for setting aside the decree and deed in question. Undoubtedly Daniel S. Mosby held an absolute title to' an undivided one-half interest in the Geyser mining property when Gisborn commenced his suit against Emerine Dressier, as the guardian of Mosby, and that he had held such title for nearly three years before. And it appears from the evidence in the record that Gisborn conceived a scheme before the suit was brought of having Mosby’s interest decreed to be in effect a mortgage to secure the payment of the $2,000 he had paid for it. To accomplish this end, he represented to Mosby’s mother that it had been so agreed between Mosby and himself in the summer of 1882, because her son had not advanced an additional sum of $1,000 he had agreed to; that he promised her $3,000 if she would consent to be appointed her son’s guardian, who was then insane; and that she consented and was appointed, and was then made defendant to Gisborn’s action to have Mosfoy’s interest so declared. It is also true that Gisborn in bis complaint falsely represented that Mosby held the deed to one-half of the claim simply to secure the $2,000, and that he controlled the defendant’s side of the case as well as his own; that he prevented Mrs. Dressier from setting up her son’s title; that no defense was interposed, and upon his false testimony the insane man’s deed was decreed to be, in effect, a mortgage to secure the $2,000; and that the court was imposed upon and misled by Gisborn’s false testimony. There can be no doubt that the court would not have granted the decree complained of if the truth had been stated by Gisborn, who was the only witness. Gisborn not only made false statements, but also concealed facts and prevented an answer or appearance in the case. There was no adversary trial. This insane man’s case was not presented to the court. It was decreed away by means of deceit, false statements, and perjury. Equity abhors all such nefarious and detestable means to mislead asd deceive courts of justice, and deprive persons of their rights, especially when the victim is insane. If the fraud now relied on to set the decree aside had been in issue in that case, and fairly tried,, it could not be retired; but such was not the case. There was no contest before the court on the trial in that case. The fraudulent devices employed by the plaintiff prevented the formation of any issue for trial, and they were effectual in suppressing the truth. This insane man’s case was not exhibited to the court. The decree, and the deed of the alleged guardian made in pursuance of it, cannot be permitted to stand. 2 Freem. Judgm. §§ 491, 493; U. S. v. Throckmorton, 98 U. S. 61. The decree of the court below dismissing plaintiff’s suit is reversed, and the case is remanded, with directions to that court to set aside its conclusions of law, and to state others in accordance with this opinion, and to grant a decree annulling and setting aside the decree of September 1, 1893, in the case of Gis-born against Emerine Dressier, guardian of the person and estate of Daniel S. Mosby, and vacating her deed in pursuance thereof to Gisborn, and adjudging the title to one-half of the Geyser mining claim, the property described in the complaint, to be in Daniel S. Mosby; with costs of this appeal to plaintiff.

We concur in‘the conclusion, but not in criticising or overruling the case of Deseret Irrigation Co. v. McIntyre et al., 16 Utah 398.

MINER and Bartch, JJ.