Annotate this Case

1920 OK 224
190 P. 681
78 Okla. 277
Case Number: 9546
Decided: 06/01/1920
Supreme Court of Oklahoma



¶0 1. Pleading--Construction--Exhibits.
The allegations of a pleading challenged by general demurrer must be construed in connection with the exhibits attached thereto (See par. 11, Op.)
2. Judgment--Recital as to Process--Conclusiveness--Record.
The recital of service of process in a judgment is not conclusive where it is positively contradicted by and in irreconcilable conflict with the judgment roll, but resort to the record to impeach such recital of service in the judgment means an inspection of the en tire record--the judgment roll. (See par. 11, Op.)
3. Same--Collateral Attack--Presumption of Process.
In support of a judgment collaterally attacked, every intendment will be indulged to uphold and support it; if the Judgment thus assailed contains no recital of service of process and the record is barren of evidence of the issuance and service of process, then the service of process will be presumed; and this presumption of service stands until overcome by evidence to the contrary. (See par. 11, Op.)
4. Same--Kind of Process Shown by Record.
If it appear positively from the judgment roll that process was served in a particular mode, no other and different service will be presumed; that is to say, where the record itself explicitly and positively shows a particular kind of service and is in irreconcilable conflict with any reasonable presumption of other service, then the character of service disclosed by the record is the one upon which the jurisdiction of the court must depend. (See par. 11, Op.)
5. Same--Lack of Process--Extrinsic Evidence--Vacating and Modifying Judgment.
Relief based on extrinsic evidence may be had against a judgment rendered without service of process, under the third subdivision of section 5267, Rev. Laws 1910, empowering the court to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made, on account of "irregularity in obtaining a judgment or order." (See par. 2, Op.)
6. Same--Time for Motion to Vacate.
If it be necessary to resort to extrinsic evidence to show the invalidity of a judgment for want of service of process, the motion to vacate must be presented within three years following the rendition of the judgment or order, as provided for in section 5274, Rev. Laws 1910. (See par. 2, Op.)
7. Same--Exclusiveness of Remedy--Equity.
The remedy provided by the third subdivision of section 5267, Rev. Laws 1910, for vacating a judgment rendered without personal or constructive service of process, is exclusive of relief in equity during the three years following the rendition of the judgment, unless there be special reasons in the particular case why the statutory remedy is inadequate. (See par. 2, Op.)
8. Same--Service of Process--Extrinsic Evidence.
Extrinsic evidence--evidence dehors the judgment roll--is admissible to contradict the officer's return of service aria the recital or service in the Judgment. (See par. 2, Op.)
9. Same--Motion to Vacate--Requisites--Meritorious Defense.
It is unnecessary for the motion to vacate, based on extrinsic evidence of no service of process, to show a meritorious defense to plaintiff's suit. (See par. 2, Op.)
10. Same--Void Judgment--Attack--Limitations.
A judgment which is void upon its face and requires only an inspection of the judgment roll to demonstrate its want of validity is a "dead limb upon the judicial tree which may be lopped off at any time"; it can bear no fruit to the plaintiff, but is a constant menace to the defendant, and may be vacated by the court rendering it "at any time on motion of a party or any person affected thereby," either before or after the expiration of three years from the rendition of such void judgment. Such motion is unhampered by a limitation of time. (See par. 3, Op.)
11. Same--"Void Judgment"--Judgment Roll--Record.
A judgment is void on its race when its invalidity is affirmatively disclosed by an inspection of the judgment roll but it is not void in the legal sense for the want of jurisdiction unless its invalidity appears on the face of the record; Edwards v. Smith

Error from District Court, Carter County; W. F. Freeman, Judge.

Action by E. B. Johnston against Becky Pettis for rents and foreclosure of landlord's lien on crops. Judgment for plaintiff, and defendant brings error. Reversed.

Guy H. Stigler, for plaintiff in error.
J. T. Wheeler, for defendant in error.


¶1 The transcript of the record in the foreclosure proceedings attached to defendant's answer contains a summons, showing thereon the officer's return of personal service on defendant; also the foreclosure judgment contains a recital of service of summons on defendant.

¶2 1. The first question is: Can the recital in the foreclosure judgment of personal service of process on defendant be contradicted by extrinsic evidence--evidence dehors the record? 23 Cyc. 1086, says that the great majority of the decisions sustain the rule that the recitals of service of process in a domestic judgment on which its jurisdiction is founded import absolute verity and cannot be contradicted or disproved in a collateral proceeding by any extrinsic evidence; citing a long list of state and federal cases. Black on Judgments (2nd Ed.) vol. 1, sec. 273, referring to domestic judgments says that "the great majority of the decisions hold that if the record shows the facts necessary to confer jurisdiction, or recites that jurisdiction did in fact attach, its averments are final and conclusive in every collateral proceeding and cannot be contradicted by any extraneous evidence." 23 Cyc. 1087, and Black on Judgments (2nd Ed.) vol 1, sec. 275, say that in other jurisdictions, Arkansas, Georgia, Minnesota, Mississippi, Nebraska, New York, Ohio, Wisconsin, Illinois, Tennessee, and Colorado, the record does not import uncontrollable verity when the want of jurisdiction is alleged, and that it is permissible to controvert the recitals of the record on this point by evidence aliunde; and always open to a party to contest the jurisdiction by producing other parts of the record which positively contradict the recitals of the judgment. One of the ablest decisions discussing the admissibility of extrinsic evidence to contradict recitals of service in a judgment is Ferguson v. Crawford, 70 N.Y. 253, 26 Am. Rep. 589; also the dissenting opinion of Judge Valliant in Smoot v. Judd (Mo.) 184 Mo. 508, 83 S.W. 481. See, also, State Ins. Co. v. Waterhouse (Iowa) 43 N.W. 611.

¶3 This court in Ray v. Harrison,

¶4 In Griffin v. Culp,

¶5 In Crist v. Cosby,

¶6 In Lausten v. Union National Bank,

¶7 In Wheatland Grain & Lumber Co. v. Dowden,

¶8 In Continental Gin Co. v. DeBord,

¶9 In Rice v. Woolery,

"The judgment or decree of a domestic court of general jurisdiction reciting that the defendant was duly served with summons for more than 41 days prior to the date of the trial by publication of the warning order as required by law, is conclusive on collateral attack, and cannot be contradicted by extrinsic proof."

¶10 That decision was on demurrer to an answer averring that the publication notice against a nonresident was not for a sufficient length of time. The answer, to which the demurrer was sustained, appears from the statement of the case by Justice Dunn to have merely alleged "that the publication had was not sufficient in law to give the court jurisdiction of the person of the defendant, Farris Rice, or the estate sought to be affected; that the notice of publication was not for the statutory time before answer day." An analysis of that case shows the admissibility of extrinsic evidence to contradict the record was not involved; Justice Dunn merely held the recital of service was a conclusive adjudication of the sufficiency of the publication proceedings.

¶11 In Rice v. Theimer,

"Where the order of the probate court in appointing a guardian recited in the order of appointment that notice was given as required by Rev. Laws 1910, sec. 6522, the same is conclusive on collateral attack."

¶12 That was a litigation between third parties for the specific performance of a contract, incidentally involving the validity of a judicial decree. The issue arose over the question as to whether or not the plaintiff tendered a merchantable title. It was not a suit in equity for relief against the judgment on the ground that it was obtained without the service of process, nor was it a motion to vacate the judgment under subdivision 3 of section 5267, Rev. Laws 1910, hereinafter discussed.

¶13 In Blackwell v. McCall,

"An adjudication of the jurisdictional facts in a domestic judgment is conclusive in a collateral proceeding attacking such judgment by attempting to again put such facts in issue."

¶14 That was a suit in the district court to set aside the judgment. It was expressly agreed that the purchasers of the land involved had paid a valuable consideration therefor, without notice of the plaintiff's claim that the former judgment was void. The record in the former Judgment showed service.

¶15 From an examination of a great number of authorities, including text-writers and adjudicated cases, we find on one side the majority of decisions holding the recitation of service in a domestic judgment cannot be collaterally contradicted by extrinsic evidence, although such recital of service may be overcome by other parts of the judgment roll in irreconcilable conflict therewith. In such cases, the judgment or decree is sustained, not because a judgment rendered without notice and without service is good, but because the law does not permit the introduction of evidence to overthrow that which, for reasons of public policy, it treats as absolute verity. Black on Judgments. vol. 1, sec. 273. Lancaster v. Wilson, 68 Va. 624, 27 Gratt. 624, states the reasoning of that line of decisions about as clearly as any we have examined. The Virginia court says that if judgments were always open to collateral attack, they would "no longer be a final adjudication of the rights of litigants, but the starting point from which a new litigation would spring up; acts of limitation would become useless and nugatory; purchasers on the faith of judicial process would find no protection; every right established by a judgment would be insecure and uncertain; and a cloud would rest upon every title."

¶16 The common-law authorities proceeded from the earliest times to hold that the memorials of courts import the most absolute and uncontrollable verity; that the records always speak the truth and cannot be contradicted except by their own inspection. That holding no doubt originated largely from a fetish reverence for the common-law courts. The judgment roll at common law was as a physical fact a judgment roll--the proceedings from the beginning to the end were originally transcribed on a roll of parchment. As new steps were taken in the case, further entries were made upon this roll. But the judicial records in America are not kept and preserved with that great care and caution displayed by the old common-law courts in England. On that side of the question we find the federal cases. Walker v. Robbins, 14 How. 584, 14 L. Ed. 552; Knox County v. Harshman, 133 U.S. 152, 33 L. Ed. 586, 10 S. Ct. 257; Miedreich v. Lauenstein, 232 U.S. 236, 58 L. Ed. 584, 34 S. Ct. 309; Foster v. Givens, 67 F. 684; Bigelow v. Chatterton, 51 F. 614; Walker v. Cronkite, 40 F. 133; Lathrop v. Stewart, 14 Fed. Cas. No. 8112; Sargeant v. Indiana State Bank, 21 Fed. Cas. No. 12360. One wishing to pursue this line of cases should examine Smoot v. Judd (Mo.) 83 S.W. 481, as well as the cases cited in 23 Cyc. 1086, and Black on Judgments (2nd Ed.) vol 1, sec. 273. But it is unnecessary to examine and cite all the cases discussing this question, we have stated the theory upon which they rest, to wit: That public policy demands that the solemn judgments of courts of general jurisdiction shall not be made to depend for their stability and permanency upon any other evidence than the written monuments of their jurisdiction preserved in the judgment roll itself. With profound deference to the distinguished courts on that side of the line, and with solemn realization of the great public importance of the question and the possible consequences of admitting extrinsic evidence to impeach the solemn judgments of courts, let us turn to the other line of cases, not for the purpose of compiling them numerically, but for the purpose of examining the reasons upon which they base their holding to the contrary. Black on Judgments (2nd Ed.) vol. 1, sec. 276 states the reasons underlying the opposing line of authorities with such force and vigor that we quote it here. Black says:

"First, there is the question of natural justice to the individual. To suffer a man to be condemned unheard, to permit him to be deprived of his property or his rights by proceedings of which he had no notice or in which he had no opportunity to be heard, is repugnant to every sentiment of fairness and right dealing, as well as wholly alien to the spirit of our jurisprudence. To sacrifice the individual to the welfare of the community is no doubt a very high principle of political ethics, but it is scarcely at home in the body of our law, except in matters of police. On the contrary, it is the guarantee which the law gives of the inviolability of every man's rights and estate that constitutes its best title to the respect and confidence of the people. True, it is said that a defendant who is injured by the rendition of a judgment against him without jurisdiction of his person, may procure its reversal in an appellate court, or move to vacate it in the court which rendered it, or go to equity with an application for an injunction. But this is no adequate safeguard. These remedies are often illusory. For it is very possible that he may remain entirely ignorant of the adjudication against him until long after his rights are irrevocably lost. In the second place, if the court had no jurisdiction, its proceedings are void; and if the action of the court was void, its memorial of that action is no record. This argument is put in a very dear light in an early New York case, where the learned judge, speaking of an alleged record, used the following language: 'It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceedings and judgments are void, and therefore the supposed record is not in truth a record. If the defendant had not proper notice of, and did not appear to, the original action, all the state courts, with one exception, agree in opinion that the paper introduced as to him is no record; but if he cannot show, even against the pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defense by a process of reasoning that is to my mind little less than sophistry. The plaintiffs in effect declare to the defendant: The paper declared on is a record, because it says you appeared, and you appeared because the paper is a record. This is reasoning in a circle. The appearance makes the record uncontrollable verity, and the record makes the appearance an unimpeachable fact. The fact which the defendant puts in issue is the validity of the record, and yet it is contended that he is estopped by the unimpeachable credit of that very record from disproving any one allegation contained in it. Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not therefore to be estopped, by any allegation in that record, from proving any fact that goes to establish the truth of a plea alleging want of jurisdiction."

¶17 Certainly in a Nation composed of 48 states and a super-state, the federal government, each with a Constitution solemnly guaranteeing the right to life, liberty, and the pursuit of happiness, a citizen's rights should never be foreclosed by a judgment without notice and without a hearing. Is it true that solemn acts of state Legislatures and the federal Congress can be stricken down by judicial decrees because they conflict with constitutional limitations prohibiting the taking of property without due process of law, and yet a citizen's savings of a lifetime can be impounded under an execution on a judgment of which he was wholly ignorant anti which he had no opportunity to resist? To illustrate: A citizen by hard labor and economy has laid up enough to keep away the wolf in old age; realizing the inability of the government to wholly protect him from thieves, burglars, and highwaymen, he can lock his crib, bolt his doors, and arm himself to resist personal violence, yet he is utterly helpless to defend his rights against a judgment based upon a false return of an officer of the law; he has been taught from early childhood that neither his liberty nor property can be taken from him under the sanction of a judicial decree until he shall have had an opportunity to resist in a neutral forum the demands and claims of those who seek to despoil him; yet he is suddenly awakened to find the sale of all his property under an execution cannot be restrained, because public policy demands that he must he sacrificed upon the altar of the uncontrovertible verity and sanctity of a judicial decree of which he had no knowledge and which he had no means to resist. We cannot bring ourselves to the point of unqualifiedly adopting a rule in this state which closes the door of hope and shuts out the light of truth We prefer to go with Illinois, Mississippi, Arkansas, Tennessee, Alabama, Iowa, New York, Colorado, Texas, and other states, and along with the great text-writers on judgments and Equity Jurisprudence. As said by Lord Coke, a judgment ought to be "the very voice of law and right." Fortified with the safeguards hereinafter defined, we believe the ends of public policy will be fully satisfied and the ends of justice met by admitting extrinsic evidence to contradict the officer's return of service and the recital in a judgment of service, when the facts and circumstances clearly, cogently, and satisfactorily demonstrate that it would be unconscionable to permit a judgment to stand against a party who had no notice of the suit and no opportunity to defend his rights.

¶18 Without undertaking to harmonize the decisions of this court, the conflict being more apparent than real, we now lay down the following as the correct rules in this state, to wit:

¶19 2. Relief based on evidence dehors the record may be had against a judgment rendered without service of process, under the third subdivision of section 5267, Rev. Laws 1910, empowering the court to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made, on account of "irregularity in obtaining a judgment or order." such motion under section 5274, Rev. Laws 1910, must be presented within three years after the rendition of the judgment or order. Canadian & A. Mortg. & Tr. Co. v. Clarita Land & Inv. Co. (Cal.)

¶20 Extrinsic evidence is admissible to contradict the officer's return of service and to show that process was not served on defendant. Wheatland Grain & Lumber Co. v. Dowden,

¶21 A plaintiff, to reassure himself of actual personal service, when defendant fails to enter his appearance under the first summons returned by the officer as served, may have another summons issued and returned by a different member of the sheriff's deputies, before proceeding to take a default judgment, and by this means put into the record cumulative evidence of service.

¶22 3. As said in People v. Greene, 74 Cal. 400,

¶23 4. When it clearly appears that a party not served with process, against whom a default judgment, valid on its face, has been taken, had no notice or knowledge of such judgment until after three years from its rendition (15 Standard Ency. of Proc. p. 275), or in too short a time before the three years expired to file a motion to vacate, he may file a suit in equity against the plaintiff to enjoin the enforcement of such judgment. We are referring to a case where extrinsic evidence is relied upon to show no service of summons, provided the ultimate relief is not barred by some other statute of limitations, if any, a question which we are not now considering.

¶24 23 Cyc. 996, says:

"Equity may vacate or enjoin a judgment in an action of which defendant had no legal notice, the trial court assuming jurisdiction on the strength of a false return of service of process by the sheriff or other officer. Earlier decisions holding that the party's only remedy was by an action against the officer are inconsistent with the modern rules."

¶25 The law is thus stated in Freeman on Judgments (4th Ed.) sec. 495:

"A judgment pronounced without service of process, actual or constructive, and without the defendant's knowledge that a court had been asked to adjudicate upon his rights, is regarded with such disfavor at law that a variety of motions, writs, and proceedings are there provided to overthrow it; and in many courts it is at all times and upon all occasions liable to be entirely disregarded upon having its jurisdictional infirmity exposed. 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." (Emphasis ours.)

¶26 In 1 Black on Judgments, sec. 377, the law is thus stated:

"Equity may vacate or enjoin the judgment of a court of law when it is shown to be unjust, and that the court rendering it never had jurisdiction of the person of the defendant, although assuming it in consequence of a false return of service of the sheriff or other officer."

¶27 Pomeroy's Equity Jurisprudence (4th Ed.) vol. 5, sec. 2084, says:

"In many cases courts of equity will interfere to prevent injustice when a court of law has acted without jurisdiction. This interference is based on the inequitable results which follow, and frequently is wholly independent of any wrong on the part of the prevailing party One of the commonest illustrations is found in cases where no jurisdiction has been obtained because there has been no service of summons or process. The rule seems to be that where the failure to serve a party results in his inability to answer, relief will be granted. On the point as to whether a meritorious defense must be shown, the courts are divided. The question is discussed more at length in a subsequent paragraph. The defect in service may not be apparent on the record, or, again, the record itself may show the want of jurisdiction. In the former case the question arises as to whether a return can be attacked. It was formerly held by common-law courts that their judgments purported absolute verity. If the jurisdiction of the court depended upon the false return of an officer re the service of process, the party injured could maintain an action against the officer, put he could not be relieved from the judgment. The modern equity eases have greatly ameliorated this harsh doctrine, and it can be safely stated that the general rule, by the weight of authority, is that a return may be attacked in an action to set aside the judgment. The justice of this rule requires no argument. The remedy at law against an officer is at best of a very doubtful character, and in many eases damages, if recovered, are a wholly inadequate remedy; for example, where the action is for the recovery of land. Some courts, however, have laid down the rule that an officer's return cannot be attacked unless it is willfully false and has been procured by the plaintiff at law. The effect of this is to make the basis of the equity action fraud by the plaintiff at law. The injured party must, if no fraud be shown, depend upon his remedy against the officer. It is everywhere held, however, that the officer's return is prima facie evidence of regularity. The court in a default judgment must find that there has been due service. This finding will be presumed to be correct. Therefore, in order to impeach it, clear and satisfactory evidence must be produced." (Emphasis ours.)

¶28 A careful examination of the text-writers and cases convinces us that the decided weight of authority supports the view that modern equity will grant relief from such a judgment. See Little Rock & Ft. Smith R. Co. v. Wells, 54 Am. St. Rep. 216, and long annotation; 15 Standard Proc., p. 296; 2 Story Eq. Jur. sec. 887; Am. & Eng. Ency. of Law (2nd Ed.) vol. 16, p. 388; High on Inj, vol. 1, sec. 222; Joyce on Inj., vol 1, secs. 631-633; People ex rel. v. Temple, 103 Cal. 447,

¶29 5. The right to appeal to equity being based on inadequacy of legal remedies (Frost v. Akin,

¶30 6. We reaffirm the doctrine of Edwards v. Smith.

¶31 In Smoot v. Judd. supra, it is said that it would be a fraud for the plaintiff, though ignorant of the falsity of the officer's return of service at the time of its retrain, to take a default judgment against the defendant with knowledge of its falsity at the time the judgment was rendered, and that under such a state of facts, the defendant could have relief in equity. There is a very narrow margin between the plaintiff who claims the fruits of a judgment based on a false return of service, and a plaintiff who obtains a default judgment with knowledge of the falsity of the officer's return. In the absence of the most extraordinary circumstances appealing strongly to the conscience of the chancellor, we will not permit a plaintiff in this state to hold on to a judgment based upon a false return of an officer. But, as said in Boone v. Chiles, 10 Pet. 210, "bona fide purchasers are its (equity court's) most especial favorites." Bona fide purchasers of property sold under a judgment not void on its face, as herein defined, will be protected against either a motion to vacate or a bill in equity to annul or evade such judgment, although extrinsic evidence would show that the officer's return of service of summons was false. or that the recital of service of process in the judgment was untrue. As pointed out, those courts excluding extrinsic evidence to show want of jurisdiction for lack of service of process, do so, not because a judgment without service is good, but because public policy will not permit the introduction of extrinsic evidence to overcome that which it treats as absolute verity. While we do not subscribe to the doctrine that public policy closes the door absolutely and at all times against the introduction of extrinsic evidence to impeach the officer's return of service, or the recital of service in the judgment, we do hold that public policy shuts the door against such extraneous evidence when to admit it will strike down the rights of innocent third parties. A purchaser who is not a party to the proceedings is not bound to look beyond the judgment, if the facts necessary to give the court jurisdiction appear on the face of the proceedings. If the jurisdiction has been improvidently exercised, it is not to be corrected at the expense of one who had the right to rely upon the order of the court as an authority emanating from a competent source. Section 5176, Rev. Laws 1910, providing that if any judgment "in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers," while not exactly applicable to a case like this, is a statutory expression of the public policy of thin state. If the purchaser under such judgment, not void on its face, had no notice of the falsity of the officer's return or the recital of service in the judgment, and pays a valuable consideration, relying upon the face of the record, his rights are superior to the defendant's. See Harrison v. Hargrave. 120 N.C. 96, 58 Am. St. Rep. 781, 26 S.E. 936: Sutton v. Shonwald. 86 N.C. 198, 41 Am. Rep. 455; Davis v. Dresback. 81 Ill. 393; Dunklin v. Wilson. 64 Ala. 162; Wilson v. Hoffman (N.J. Eq. 50 A. 592; Fox v. Robbins, (Tex. Civ. App.) 62 S.W. 815; Cassidy v. Automatic Time-Stamp Co., 185 Ill. 431, 56 N.E. 1116; Reeve v. Kennedy, 43 Cal. 643, 650; Stokes v. Geddes, 46 Cal. 17; Friebe v. Elder, 181 Ind. 597, 105 N.E. 151; Hilt v. Heimberger, 235 Ill. 235, 85 N.E. 304; McCormick v. McClure, 6 Blackf. 466. 39 Am. Dec. 441; Taylor v. Boyd, 3 Ohio 337, 17 Am. Dec. 603; Gould v. Sternberg, 128 Ill. 510, 15 Am. St. Rep. 138, 21 N.E. 628; Reynolds v. Harris. 14 Cal. 667, 76 Am. Dec. 459; Hudepohl v. Liberty Hill Water Co., 94 Cal. 588, 28 Am. St. Rep. 149,

¶32 7. Sound public policy, the stability of solemn judgments of courts, and the security of litigants demand that neither the officer's sworn return nor the recital of service in the judgment based thereon shall be set aside or contradicted except upon the most satisfactory evidence. The evidence must be clear, cogent, and convincing, and, as said in Kochman v. O'Neill (Ill.) 66 N.E. 1047, "Every presumption in favor of the return is indulged. and it will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been made." Nor can the officer making the return upon which the judgment was rendered contradict it. Duncan v. Gerdine, 59 Miss. 550. As said in Randall v. Collins, 58 Tex. 231, "It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony." See, also, Quarles v. Hiern, 70 Miss. 891, 14 So. 23; Hunt v. Childress, 73 Tenn. 247, 5 Lea 247; U.S. v. Gayle, 45 F. 107; Driver v. Cobb, 1 Tenn. Ch. 490; Ray v. Harrison,

¶33 8. Defendant, however, insists that the foreclosure Judgment is void on its face, because her husband, Isaac Leonard. was not a party to that suit; that the land involved was the family homestead, and that the husband was an indispensable party to the foreclosure action and without him before the court the foreclosure judgment and sale thereunder are void. If it appears from an inspection of the judgment roll in the foreclosure case that Isaac Leonard, the husband, was not a party, then the judgment so far as he is concerned is a void judgment, within the meaning of section 5274. Rev. Laws 1910, and may be set aside or ignored at any time.

¶34 9. Before we can consider the question as to whether or not the husband was a party to that case by service of process, either actual or constructive, it is necessary to decide whether or not the wife, the owner of the homestead in fee, can raise that question. Section 2 of article 12, Williams' Ann. Oklahoma Constitution, exempts the family homestead from forced sale, "for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon." The same section of the Constitution prohibits alienation of the homestead "without the consent of his or her spouse, given in such manner as may be prescribed by law," providing, however, that the homestead may be mortgaged by the husband and wife joining therein and that it may be sold on foreclosure to satisfy such a mortgage. Section 1143, Rev. Laws 1910, provides that "no mortgage * * * shall be valid unless reduced to writing and subscribed by both husband and wife." In Whelan v. Adams,

"It must be remembered that it (meaning the homestead) is not the homestead of the husband alone, though the title be in his name; it is the homestead or the family, made so by the Constitution."

¶35 In Gooch v. Gooch,

"The family homestead may consist of more than one tract of land, and may be owned by either the husband or his wife, or by both Jointly, or one tract may be owned by one and the other tract owned by the other, so long as the aggregate number of acres occupied as a homestead does not exceed 160 acres."

¶36 And in that case cited approvingly Ehrick v. Ehrick, 106 Iowa: 614, 68 Am. St. Rep. 330, wherein the court held that, although the homestead had been set apart out of the property of the wife, the husband nevertheless had full right to live upon and cultivate the homestead, although the wife chose to live apart from the husband, and that so long as the wife elected to live elsewhere she was not entitled to any benefit from the homestead, the husband being entitled to occupy and enjoy the same.

¶37 Alton Mercantile Co. v. Spindel,

¶38 Thus, the homestead interest is jointly vested in husband and wife, although the title to the land may be entirely in one spouse; the homestead interest is a creature of the Constitution and statutes, nothing like it being known at common law; it is a special and peculiar interest in real estate and has been variously characterized by different courts as an exemption, a fee, a freehold estate, or a life estate, but we deem it unnecessary to define it with precision in this case 21 Cyc. 460. It survives the death of either or both the husband and wife. Union Trust Co. v. Cox,

¶39 This peculiar interest, denominated homestead, cleaves and adheres so closely to the title to the land itself that it cannot be divorced therefrom by a mortgage foreclosure sale under a court decree to which either husband or wife is not a party. If both husband and wife are not made parties, the judgment and sale are utterly void and the purchaser takes no title. Of course, the children are not necessary parties so long as the husband or wife is the head of the family, because the children are represented by the father and mother and their interest may be extinguished by abandonment or a deed executed by the father and mother without their consent. We realize there is a conflict of authority on this question, but our decision as above outlined is the logical sequence of joint ownership of the homestead right. These conclusions are supported by the following authorities: Hefner v. Urton, 71 Cal. 479,

¶40 10. The assault made by the defendant, Becky Pettis, on the judgment in the foreclosure proceedings in the district court is a collateral attack. A collateral attack on a judicial proceeding is an attempt to avoid defeat, or evade it, or to deny its force and effect in some manner not provided by law; that is, in some other way than by appeal, writ of error, certiorari, or motion for a new trial. We are not attempting to name all the methods falling within the scope of a direct attack, but in this case the judgment in the foreclosure proceedings is not assailed by any method prescribed by law for correcting erroneous judgments. A successful collateral attack on a judgment does not operate to set aside or vacate such judgment--the judgment is merely avoided or evaded. Morrill v. Morrill, 23 Am. St. Rep. 95. Where a judgment forms a link in a litigant's chain of title, and the opposing party, plaintiff or defendant, in his pleadings, or by objecting to its introduction in evidence, assails its validity for defects in the record on which the judgment is based, the attack is collateral and not direct. 23 Cyc. 1063-1064, and authorities; also Bruno v. Getzelman,

¶41 11. Having held that defendant had the right to question the jurisdiction of the court to render the foreclosure judgment against her husband, we will dispose of that question, Defendant avers that no summons was served on her husband, and that the attempted service of summons by publication was void. In the default foreclosure judgment it is recited that Isaac Leonard, "having been duly summoned as by law required, came not, but wholly made default." Is this finding of service on Isaac Leonard conclusive against collateral attack? The foreclosure judgment does not recite personal service of summons on Isaac Leonard, but defendant attached to her answer in this case what she alleges to be a "true and correct copy of all the proceedings in said cause (meaning the foreclosure case) and makes same a part of this answer." The sufficiency of the answer will be tested by its averments construed in connection with the facts disclosed in the transcript attached thereto as an exhibit. Southern Surety Co. v. Municipal Excavator Co.,

"Affidavit to Obtain Service by Publication.
"State of Oklahoma, Carter County, ss.
"In the District Court Within and for the County and State Aforesaid.
"The Farmers Loan and Security Company, Plaintiff, vs. Becky Leonard and Isaac Leonard, Defendant.
"Affidavit to Obtain Service by Publication.
"W. T. Roberts, being duly sworn according to law, says that he is the attorney for above named plaintiff and that on the 19th day of April, 1912, said plaintiff filed in said district court a petition against said defendants Becky Leonard and Isaac Leonard showing that therefore the said defendants were indebted to plaintiff one note in the sum of $ 200.00 and interest, that said indebtedness is secured by mortgage lien on certain real estate therein described.
"Affiant Further Says: That this action is brought for debt and foreclosure of mortgage lien.
"Affiant Further Says, that the said defendant Isaac Leonard is a nonresident of the state of Oklahoma, and that the service of summons cannot be made on the said defendant Isaac Leonard within the said state of Oklahoma, and that the said plaintiff wish to obtain service on said defendant by publication; and further affiant saith not.
"W. T. Roberts,
"Atty. for Plaintiff.
"Subscribed and sworn in my presence and sworn to before me this 27th day of April, A. D. 1912.
"S. F. Haynie, Clerk.
"By S. M. Parker, Deputy.
"Affidavit to obtain service by publication.
"Filed: Apr. 27, 1912.
"S. F. Haynie, Clerk District Court."

¶42 We conclude that the only service on Isaac Leonard, and the service referred to by the court in the foreclosure decree, was the service by publication, there being no express recitation in the foreclosure decree that personal service of summons was had on Isaac Leonard. The publication notice is as follows:

"Notice for Publication.
"State of Oklahoma, Carter County.
"In the District Court.
"The Farmers Loan and Security Co. Plaintiff vs. Becky Leonard and Isaac Leonard, Defendants. No. 1408.
"Said defendant, Isaac Leonard, will take notice that he has been sued in the above named court upon debt and foreclosure of mortgage, and must answer the petition filed herein by said plaintiff on or before the 13th day of June, A. D. 1912, or said petition will be taken as true, and a judgment for said plaintiff in said action for foreclosure of mortgage will be rendered accordingly.
"Dated this 27th day of April, 1912.
"W. T. Roberts,
"Attorney for Plaintiff.
"Attest: S. F. Haynie, District Clerk.
"By S. M. Parker, Deputy."

¶43 Defendant assails the validity of the constructive service on the following grounds: (1) That the affidavit for publication did not describe the land involved; (2) that the affidavit did not state, generally or specifically, that the plaintiff exercised any diligence to obtain service of summons on Isaac Leonard in the state of Oklahoma; (3) that the publication notice neither described the land nor stated the nature of the plaintiff's claim. The three years allowed by section 4728, Rev. Laws 1910, for Isaac Leonard to have the judgment opened expired before this suit was commenced.

¶44 (A) Was it necessary to describe the land in the affidavit for publication? Defendant relies upon Ballew v. Young,

¶45 Section 4722, Rev. Laws 1910, with sections 4671 and 4672 read therein, authorizes service by publication in either of the following eases: (1) "for the recovery of real property, or of any estate, or interest therein, or the determination in any form of any such right or interest"; (2) for the partition of real property; (3) for the sale of real property under a mortgage, lien, or other encumbrance or charge; (4) to quiet title, to establish a trust in, remove a cloud on, set aside a conveyance of, or to enforce or set aside an agreement to convey real property; (5) in actions to establish or set aside a will; (6) in actions to obtain a divorce; (7) "in actions brought against a nonresident of the state, or a foreign corporation, having in this state property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way"; (8) in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a nonresident of the state or a foreign corporation; (9) in actions where the defendant, being a resident of Oklahoma, has departed with the intent to delay or defraud his creditors, or to avoid service of summons, or conceals himself with like intent.

¶46 These sections of the statute authorize service on nonresidents by publication in the first eight of the above actions, but no personal judgment can be rendered upon service by publication (Continental Gin Co. v. Arnold,

¶47 "Actions brought against a nonresident of state, or a foreign corporation, having in this state property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way" (number 7 above), must be supported by an attachment or garnishment authorized by article 9, Code of Civil Procedure, or other provisional remedy impounding the nonresident's property, because in that class of cases the court's jurisdiction depends on a seizure of the nonresident's property. Waldock v. Atkins,

¶48 The plaintiff's petition in an attachment case is not required to describe any property of the nonresident; he may sue on a promissory note or an open account and his petition is good without any reference to the property of the defendant. Actions mentioned in number 7, italicized above, are distinguished from actions in rem. Actions for the recovery of real property, etc., for the partition of real property, for the sale of real property under a mortgage, lien or other encumbrance, and actions to quiet title, establish a trust, remove a cloud on, set aside a conveyance of, or to enforce or set aside an agreement to convey real property, are actions in rem. (Robinson v. Kind. 23 Nev. 330; Bernhardt v. Brown, 118 N.C. 700, 24 S.E. 527; Gould v. Garrison. 48 Ill. 258; 17 Ency. Pl. & Pr. 119); and a real estate mortgage may be foreclosed without a personal judgment for the mortgage indebtedness (Echols v. Reeburgh.

¶49 The Kansas Supreme Court in Allison v. Whitaker,

¶50 The affidavit assailed in this case states that defendants are indebted to plaintiff in the sum of $ 200 and interest, as shown by a promissory note executed by defendants, that plaintiff therein had filed in the district court a petition against defendants showing said indebtedness, and that it was secured by a mortgage lien on certain real estate therein described. The petition to foreclose specifically describes the land, necessarily so, and also the debt secured by the mortgage, and prays for foreclosure and sale. All the possible defects in the affidavit are supplied by reference to the petition, and inasmuch as the affidavit expressly refers to the petition, which is also verified, we hold that the affidavit and petition should be construed together in a proceeding in rem against the nonresident; and especially is this true inasmuch as the affidavit is not published, and is not in an action in rem the initiatory step in the acquisition of jurisdiction. In Sharp v. McColm, supra, the defects in the affidavit were cured by reference to the petition and exhibits thereto. In Miller v. Eastman, 27 Neb. 408, 43 N.W. 179, defects in the affidavit for publication in an attachment suit were supplied by reference to the affidavit for attachment. The opinion in that case says: "The court will look at the entire record, and, if it appear from all the affidavits before the court issuing the attachment that the essential facts to confer jurisdiction were duly sworn to therein, the judgment will not be declared void." Also Jones v. Danforth, (Neb.) 99 N.W. 495; Bray v. Marshall, 75 Mo. 327.

¶51 12. Neither is the affidavit for publication defective because it fails to state that plaintiff exercised due diligence to obtain personal service in this state. An affidavit for service by publication alleging that the defendant is a nonresident of the state and that plaintiff is unable to obtain service of summons in Oklahoma upon the defendant, is sufficient without the additional allegation that plaintiff exercised diligence to obtain personal service. City National Bank v. Sparks,

¶52 13. The failure of the publication notice to describe the land involved in an action in rem or to state that the mortgage to be foreclosed is a real estate mortgage, or to state the amount of the note or debt secured by the mortgage, is not fatal on a collateral attack on the jurisdiction of the court in the foreclosure proceedings. There was a publication notice; that notice stated correctly the court in which the case was pending, the number of the case on the docket, the name of the plaintiff and the names of the defendants; that the plaintiff had sued the defendants "in the above named court upon debt and foreclosure of mortgage," and must answer "the petition filed herein by said plaintiff on or before the 13th day of June, 1912, or said petition will be taken as true, and a judgment for said plaintiff in said action for foreclosure of mortgage will be rendered accordingly." We have already seen that a mortgage may be foreclosed in this state without any personal judgment for the mortgage indebtedness. Echols v. Reeburgh,

¶53 About the only difference between the publication notice in Sharp v. McColm and the one in this case is that the notice in the Kansas case stated that the petition was filed to foreclose a mortgage on real estate, while in this case the notice merely says "a mortgage", without specifying whether on real or personal property. But the notice in this case clearly referred to the petition filed to foreclose the mortgage, and the number of the foreclosure case in the district court of Carter county, and by that reference the notice was sufficient to warn the defendant that a mortgage foreclosure suit covering his property had been commenced against him in the district court of Carter county, Oklahoma, in case No. 1408. On collateral attack we will treat the publication notice, containing material elements required by the statute, sufficient if that which is uncertain and omitted therefrom may be made certain by reference to the affidavit for publication or the original petition to foreclose the mortgage. We will apply the following principle announced by Van Fleet on Collateral Attack, section 774:

"The papers and entries in a judicial proceeding, from the summons or initiative paper to the final judgment or decree of confirmation, being one single instrument, in a collateral attack on account of a misdescription of land, the same rules are applied as in the construction of grants, and if there are certain things which identify the corpus or things intended to be affected or sold, the addition of a false or mistaken description will not vitiate it, as was expressly decided by the Supreme Court of Arkansas."

¶54 The doctrine above stated by Van Fleet was applied by the Kansas Supreme Court in Sharp v. McColm, supra, and Rogers v. Rogers (Kan.)

¶55 The statute does not expressly require the publication notice to state the amount of the mortgage debt, but merely "the nature" of the judgment. The failure of the notice to state the amount of the mortgage note is not fatal on a collateral attack. Holland v. Adair, 55 Mo. 40. But there was a publication notice, and it did state material facts. There is a vast difference in the status of a judgment based upon no service of process and one based upon defects in the service of process. Defects in the service of process must be taken advantage of in direct proceedings and furnish no ground for collateral attack on the judgment, especially when it appears that the court whose judgment is assailed decided that the service of process was sufficient. 19 Ency. Pl. & Pr., pp. 704-707, inclusive; 17 Ency. Pl. & Pr., p. 120; Stevirmac Oil & Gas Co. v Dittman, 245 U.S. 210, 62 L. Ed. 248, 38 S. Ct. 116.

¶56 The authority to hear and determine a case is jurisdiction to try and decide all the questions involved in the controversy, including the power to pass upon the sufficiency of the service of process. Quarl v. Abbott (Ind.) 1 N.E. 476. Jurisdiction to appoint an administrator of the estate of a living person (Griffith v. Frazier, 8 Cranch 9, 3 L. Ed. 471), or condemn as a lawful prize a vessel that was never captured (Rose v. Himely, 4 Cranch 241, 269, 2 L. Ed. 608), has never been conferred upon any court. But jurisdiction to base a mortgage foreclosure decree on constructive service of process against a nonresident is vested in the district courts of this state, and in the exercise of that jurisdiction those courts must pass first upon the sufficiency of the constructive service. The filing of the petition to foreclose, the affidavit for publication, and the publication notice set in motion the jurisdiction of the court, and the jurisdiction thus invoked includes the power to pass upon the sufficiency of the steps taken by the plaintiff to invoke its jurisdiction. If this be not true, then the division line between direct and collateral attack on judgments has been abolished. As said by Judge Sanborn in Foltz v. St. L. & S. F. R Co., 60 F. 316, the "jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power," and "to determine every issue within the scope of its authority, according to its own view of the law and the evidence," and, "whether its decision is right or wrong," it "is final and conclusive upon the parties to it. unless reversed by writ of error or appeal, or impeached for fraud."

¶57 The district court of Carter county in the foreclosure case had jurisdiction to decide whether or not the publication notice should be construed with reference to the affidavit for publication and the foreclosure petition--had jurisdiction to test the sufficiency of the publication notice according to the rules prescribed by the statutes of this state. Isaac Leonard is not now before the court in this case, and if the district court in the foreclosure case did not have jurisdiction to pass upon the sufficiency of the publication notice, because he was not personally summoned, how can this court now have jurisdiction to pass upon the sufficiency of the notice? Some court must decide whether or not there was jurisdiction to render the foreclosure judgment, and the court rendering the judgment had jurisdiction to foreclose mortgages, and in exercising that jurisdiction it was absolutely necessary to pass on the sufficiency of the constructive service by publication.

¶58 In Garrett v. Struble,

"This is a collateral attack upon these decrees: and, unless they are wholly void, the attack must fail though they may be erroneous. Had the court proceeded in these cases without any notice, then it would be clear that there was a want of jurisdiction, but it clearly appears, by the special finding, that there was some notice, and that such notice was based upon an affidavit. It became, therefore, a question to be determined by the courts in which these proceedings were pending as to whether such affidavits and notices were sufficient. The court having determined that question in favor of jurisdiction, such determination is conclusive as to all the parties when collaterally attacked."

¶59 Black on Judgments (2nd Ed.) vol. 1, sec. 274, says:

"Where a statute confers general jurisdiction over a class of cases upon a particular tribunal, its decision upon the facts essential to the existence of jurisdiction in a particular case belonging to the class will be conclusive as against collateral attack. So when a notice which is defective, or the service of which is informal, has been adjudged sufficient, the judgment rendered thereunder will not be held void in a collateral proceeding. And in case of an insufficient service of notice, if the court decides the question of jurisdiction erroneously, the judgment will be voidable, but binding until reversed on appeal. The determination of the question of the sufficiency of the affidavits presented to the court as proof of the service of a summons and the failure of the defendant to answer, is a judicial determination of the question of jurisdiction, and therefore binding until set aside or reversed."

¶60 This is in accord with the prior decisions of this court in Rice v. Woolery,

¶61 Of course a publication notice to one or more defendants named therein cannot be treated as any notice to other nonresident defendants not named therein. The publication notice in this case named the parties correctly; it was a publication notice, though defective. The foreclosure decree adjudged the notice sufficient, and that adjudication cannot be impeached in a collateral proceeding if there be enough in the publication notice to call for construction, and construction means the application of the law to the facts stated. Hogue v. Corbit, 156 Ill. 540, 47 Am. St. Rep. 232, 41 N.E. 219; Miller v. White, 46 W. Va. 67, 76 Am. St. Rep. 791, 33 S.E. 332.

¶62 14. On the demurrer to the answer we are treating the transcript of the record in the foreclosure case as the judgment roll, but whether it is such in fact may be disputed when this case comes for trial on the answer. The judgment roll at common law signified a roll of parchment upon which the proceedings and transactions of a court were entered by its officers, and it was then deposited in its treasury in perpetuam rei memoriam, but since paper has universally supplied the place of parchment the roll has fallen into disuse. The equivalent of the judgment roll, however, is provided for by sections 5144 to 5146, inclusive, Rev. Laws 1910. Those sections direct the clerk upon order of the court to make a complete record of every case as soon as it is finally determined, such record to contain "the petition, the process, the return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court." When we have spoken in this opinion of a judgment void on its face, we mean a judgment whose invalidity is disclosed from an inspection of such a record--the judgment roll. See 14 Standard Proc., p. 744.

¶63 15. The judgment in the foreclosure case was entered on September 14, 1912, and this suit was commenced on October 18, 1916, more than three years after the rendition of the foreclosure judgment. The court sustained plaintiff's demurrer to that part of defendant's answer averring the deed executed by the sheriff to the purchaser at the foreclosure sale was void, because, as averred, "said bid was never paid to the sheriff, never paid to the court clerk of this court, and that said judgment against the defendants in said case remains unsatisfied." If the purchaser at the foreclosure sale did not pay his bid, then he could not claim to be the equitable assignee of the mortgage, and the defendant owes him nothing. The mortgage foreclosure sale was for cash. An officer selling property under a decree can sell such property on such terms, and such terms only, as are provided by the decree and the law in force governing such sale, which is incorporated into and made a part of such decree, and the officer has no authority to sell on credit or to accept in payment of the bid anything other than lawful money, unless otherwise expressly authorized by the decree or the law in force governing such sales. As between the mortgagor and the purchaser who refuses to pay his bid at a cash sale, no title passes under a deed executed by the sheriff, and the mortgagor has a right to have the property resold to foreclose the mortgage. Hooper v. Castetter (Neb.) 63 N.W. 135; International Mfg. Co. v. Brammer Mfg. Co., 138 F. 396; Phelps v. Jackson, 31 Ark. 272; Allison v. Crummey,

¶64 Whether a deed executed by the sheriff and confirmed by the court is sufficient title to support a plea of bona fide purchaser filed by a vendee of the sheriff's vendee is a question upon which we express no opinion, as that point has not yet been raised in this case other than in the defendant's allegation that plaintiff took said land subject to all defendants defenses.

¶65 16. This cause is reversed and remanded to the district court with directions to overrule plaintiff's demurrer to that part of defendant's answer alleging no summons was served on her in the foreclosure sale, and alleging that Cochran, the purchaser at the sale, has not paid his bid, and to allow the parties to make up the issues in that court as a court of equity; relief to defendant being conditioned on her showing no laches or negligence in attacking the foreclosure judgment for want of service of process on her and according to the equitable principles herein laid down. She will be allowed to amend her answer to meet these requirements.


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