Imagens das páginas

200, 17 S. W. 806; Peck v. Strauss, 33 Cal. I to him, proceeded to, and did, enter judg. 678; Ballinger v. Tarbell, 16 Iowa, 492, 85 ments against him, and in favor of the Am. Dec. 527.

defendant Murphy, at the hour of 8 o'clock A proceeding to enjoin the enforcement of of the 8th day of November, 1902, aforesaid, a judgment or decree by execution or de whereby said Murphy was awarded the poscretal order is a collateral attack upon the session of the property described in said judgment, and cannot be maintained for Murphy's complaint, besides costs of suit; mere errors or irregularities.

that each and every one of the judgments Davis v. Clements, 148 Ind. 605, 62 Am. rendered by the said Brockway, as hereinSt. Rep. 539, 47 N. E. 1056; Shrack v. Co- before set out, in favor of defendant Murphy vault, 144 Ind. 260, 43 N. E. 229; Krug and against said plaintiff, is null and void, v. Davis, 85 Ind. 309; Fitch v. Byall, 22 and of no force and effect, for the reason that Ind. App. 628, 47 N. E. 180.

said summonses were not served as required Mr. Henry C. Hinckley for respondent. by statute, in that the defendant in said

three actions was not given the said three Corson, P. J., delivered the opinion of days' notice, as required; and that said the court:

justice had no jurisdiction of said case This is an action in equity brought by whatever. And the court concludes from George Kerr, as sheriff of Beadle county, the said findings that the three summonses against John Murphy, R. B. Brockway, issued in the three several cases aforesaid justice of the peace, and A. B. Kenyon, cor were not served on the defendant in said aconer of Beadle county, to restrain the de- tion, and that the said Brockway, as jusfendants from enforcing three certain judg. tice aforesaid, acquired no jurisdiction by ments alleged to have been entered in the which he could render or enter judgments police justice court of Huron by the defend-in said several causes against the said ant R. B. Brockway, police justice, in ac- George Kerr, sheriff, aforesaid; that said tions wherein John Murphy was plaintiff judgments and all proceedings thereunder and George Kerr was defendant. Findings are void. The court thereupon entered and judgment were in favor of the plain- judgment restraining the said defendants, tiff, and defendants have appealed.

and all persons claiming under them, from The court's findings are, in substance, as enforcing said judgments by execution or follows: That said Brockway was the duly otherwise. elected, qualified, and acting justice of the It will be seen from the findings of the peace in and for the city of Huron; that court that the summonses in the three acdefendant Kenyon was the duly elected, tions were dated the 5th day of November, qualified, and acting coroner in and for 1902; that they were not served until the Beadle county; that the plaintiff was the 6th; and that judgments were entered thereduly elected, qualified, and acting sheriff of on on the 8th by default. Two questions are Beadle county; that on the 5th day of No- therefore presented by the record : (1) vember, 1902, the defendant John Murphy Were the judgments so entered by the police commenced three actions against the sheriff justice void or simply erroneous ? (2) Was as sheriff of the county, in the court of the a suit in equity a proper proceeding to defendant Brockway; that said actions were vacate and set aside the said judgments, in claim and delivery, to recover possession and to restrain the defendants from proof certain personal property which had been ceeding thereunder? levied upon and was in the possession of It is contended by the appellants that the the plaintiff, Kerr, as sheriff aforesaid, as judgments were not void; that, as to the property of one S. D. O'Conners; that the defective service upon the plaintiff, on November 5, 1902, three summonses were as sheriff, and defendant in those actions, issued by said Brockway, as such police jus. in giving him but two days in which to tice, in said actions, requiring the plaintiff answer, instead of three days, it was simply herein to appear before said Brockway on an irregularity on the part of the justice, the 8th day of November, 1902, at the hour which could only be taken advantage of in of 8 o'clock A. M., to answer the complaint the justice court by motion to vacate and or the defendant Murphy; that each and set aside the same, and, if denied, by appeal every one of said summonses were served on to the appellate court; that the defective the plaintiff herein on the 6th day of No-service did not deprive the justice of jurisvember, 1902; that the plaintiff failed to diction; that, the moment that personal servappear in said Brockway's court in response ice was obtained on the plaintiff as defendto said summonses, or any one of them, onant in the claim and delivery actions, juris. the 8th day of November, or at any time, diction attached, subject to be defeated by and that the said Brockway, as justice the proper proceedings before the justice, aforesaid, without the knowledge or consent and by appeal to the circuit court having of the plaintiff herein, and without notice appellate jurisdiction of the same.


It is contended, on the other hand, by the I from hearing and deliberating upon a matrespondent, that the justice's judgments, as ter which by law it was authorized to hear found by the court, were absolutely void, and decide, though erroneous, cannot be and that, being void, an action in equity void.” That learned author, in the note to was the proper remedy to enjoin proceed the section, says: “A distinction is to be ings thereunder. Section 14 of the Revised | made between a case where there is no servJustices’ Code provides, “The time specified ice whatever, and one which is simply dein the summons for the appearance of the fective or irregular. In the first case the defendant shall in all cases be not less than court acquires no jurisdiction, and its judythree nor more than twelve days from the ment is void; in the other case, if the court date of the service of the same;" and by $ to which the process is returnable adjudges 15 it is provided that “when the defendant the service to be sufficient, and renders resides in the county, or is summoned there judgment thereon, such judgment is not in, the summons cannot be served within void, but only subject to be set aside by the two days of tne time fixed for the appear- court which gave it, upon seasonable and ance of the defendant."

proper application, or reversed upon appeal. It will thus be seen that the time speci- Isaacs v. Price, 2 Dill. 351, Fed. Cas. No. fied in the summons shall, when served 7,097.” Judge Black, in his work on Judg. within the county, be not less than three ments, $ 224, says: “Although the service nor more than twelve days from the date of of process in an action may have been charthe service of the same, and that, when the acterized by some defect or irregularity, it defendant resides in the county, he cannot does not necessarily follow that the ensuing be served within two days of the time fixed judgment will be void. For, if the parfor the appearance of the defendant. These ty would take advantage of such a matter, provisions of the Code are mandatory, and he must do so in the action itself, by some cannot be dispensed with, unless waived by proper motion or proceeding. It is only the defendant by appearing in the action, when the attempted service is so irregular generally at the time specified in the sum- as to amount to no service at all that there

The service of the summonses in can be said to be a want of jurisdiction. In the cases in the justice's court being made any other case there may be error in the on the 6th of November, and the summonses subsequent proceedings, but they will be requiring the defendant thereunder to ap- sustained against a collateral attack.” In pear on the 8th day of the same month, un- $ 223 that learned author says: “But der no rule or computation of time gave where it appears that there was notice, him more than two days' notice. The view though defective, and service, though imperthat a judgment in such a case is irregular, fect, a decision of the court to which the but not void, seems to be sustained by the process was returnable that such notice and great weight of authority. Mr. Freeman, service were suflicient will not be held void in his work on Judgments, vol. 1, § 126, in a collateral proceeding.

Again, says: “There is a difference between a want a judgment in an action in which the reof jurisdiction and a defect in obtaining quired number of days' notice was not given jurisdiction.

From the moment of to the defendant is erroneous, but not void, the service of process the court has such and cannot be questioned in a collateral control over the litigants that all its subse- proceeding.” quent proceedings, however erroneous, are In the case of Ballinger v. Tarbell, 16 not void. If there is any irregularity in Iowa, 491, 85 Am. Dec. 527, the supreme the process, or in the manner of its service, court of Iowa, speaking by Judge Dillon, the defendant must take advantage of such says: “It is claimed by the defendants, irregularity by some motion or proceeding Claggett, Browne, and Claggett, that the in the court where the action is pending. judgment of the plaintiff against Tarbell The fact that defendant is not given all the and Robertson was wholly void as against time allowed him by law to plead, or that Tarbell, because the justice of the peace he was served by some person incompetent who rendered the same had no jurisdiction to make a valid service, or any other fact of the person of the defendant Tarbell; and connected with the service of process on this is the first question which we are account of which a judgment by default called upon to determine. ... That would be reversed upon appeal, will not or- this service, as to Tarbell, was defective, is dinarily make the judgment vulnerable to a apparent, because the statute requires five collateral attack. In case of an attempt days' notice, and here were only four. It ed service of process, the presumption exists may also be defective because served by the that the court considered and determined justice himself, and not the constable. It the question whether the acts done were was therefore clearly erroneous in the jussufficient or insufficient. If so, the conclu- tice to have rendered judgment against sion reached by the court, being derived ! Tarbell on this service. It would have been,

without doubt, reversed on writ of error. it is in some respect deficient or irregular. But it was erroneous simply, and not void. In the latter cases, jurisdiction attaches, It is not a case where there is no service at subject to be defeated by objections to the all, but a case where there was a defective irregularity, interposed in season in some service. The justice erred in deciding that direct manner. In the former class, juristhis service authorized him to render judg- diction is not obtained if the law requires ment against Tarbell; but neither Tarbell service. Where the facts touching the acnor his assignees can question the validity quisition of jurisdiction are fully disclosed. of this judgment, or claim to have it treat the principles of law governing liability to ed as void in this collateral proceeding.” collateral attack are applied no less favor

This question has been very fully consid- ably to judgments of justices of the peace ered by the supreme court of Missouri in than to the adjudications of courts having Leonard v. Sparks, 117 Mo. 103, 38 Am. St. more extensive powers. We conclude, thereRep. 616, 22 S. W. 899, and that learned fore, that, on principle, the shortness of the court arrives, after an exhaustive review of service on Mr. Bouton furnishes no subthe authorities, at the same conclusion, and stantial ground in the present action to in its opinion says: “But was complete ju- deny effectiveness to the judgment in the risdiction obtained over Mr. Bouton? The condemnation case. ... In this condilatter personally received an oflicial com tion of the precedents in Missouri, we have mand to appear in the condemnation case felt at liberty to re-examine the subject, before the mayor at a time named. The and to declare the law as seemed in connotice itself was valid and regular, in the fermity with correct principles. In doing prescribed statutory form, and duly served so, we find that the position we have taken on Mr. Bouton within the territorial juris- has ample support in well-considered cases diction of the mayor. Mr. Bouton was en in other states bearing upon the precise titled by law to six days' notice; but the point of present controversy. Ballinger v. mayor would have had jurisdiction over Tarbell (1864) 16 Iowa, 491, 85 Am. Dec. him if he had appeared without any notice, 527; McNeill v. Hallmark (1866) 28 Tex. as he might have done. So, also, might he 157; Glover v. Holman (1871) 3 Heisk. have objected to the shortness of the serv 519; Nelson v. Becker (1875) 14 Kan. 509; ice, and have asserted his right to the full Betts v. Baxter (1880) 58 Miss. 334; Bowsix days' notice by moving at the proper man v. l'enice & C. R. Co. (1882) 102 Ill. time to make that objection. But he did not | 472; Jackson v. State (1885) 104 Ind. 516, see fit to do so. He was as competent to 3 N. E. 863." waive the full length of time of service as This question was also very fully considhe was to appear without any notice what ered by the supreme court of Vermont in ever. The personal service of the process Hammond v. Wilder, 25 Vt. 343, in which of the court brought the judicial power of that court, speaking by Redfield, Ch. J., the latter to bear upon him. He had his says: "Two questions arise in the present ‘day' to object to the process, if he did not

(1) If a writ of attachment, returndeem it suflicient because not timely, or for able before a justice in a different county any other reason; but he did not avail him from that in which it is served, be served by self of that opportunity. He certainly attaching property less than twelve days could not, by ignoring the command of the before the return day, and no appearance is writ, deprive the court of authority to de- made by defendant, and judgment is given termine as to the sufficiency of its service. by default, is the judgment valid ? It was for the court, not the party, to decide Is there any such case where the defect has whether or not it was sufficient. It held been held fatal to the proceeding when the it to be good, and rendered judgment ac defendant does not appear? So far from cordingly. In contemplation of law, Mr. this, it is true that even matters of error, and Bouton was before the court, for he had which, on writ of error, would be held fatal been personally summoned to appear there. to the proceeding, when fully apparent upon and might have done so. If the call for his the record, do not render the judgment void. appearance was too sudden, the court’s rul. There is no case in which the judgment of a ing that it was adequate may be error, court of record of general jurisdiction has which could have been rectified by season. been held void unless for a defect of jurisable and direct moves for that purpose; but diction. This seems to be conceded in arsuch error could not defeat the court's gument, and it is attempted to make this jurisdiction to render a judgment conclu- diefect amount to a want of jurisdiction. sive upon him, or subject that judgment to But this is certainly a new view of the subsuccessful attack collaterally. A brond jeet. It is but a defect of service, and not distinction is to be drawn between cases more important than thousands of other de. where no service on defendant appears, and fects. It was never supposed before that, those in which service is shown, but where I because the proper time was not given to a



defendant to prepare for trial, the whole, In Grand Chute v. Winegar, 15 Wall. 373, proceedings were rendered utterly void. 21 L. ed. 174, the Supreme Court of the And it is impossible to make this result United States, speaking by Mr. Justice from the form of the provisions of the stat. Hunt, says: “It is an elementary princiute. If we extend such a doctrine to one ple of equity law that when full and adecase, we must to all; and if it apply ti quate relief can be obtained in a suit at law justice courts, it must to the county court a suit in equity cannot be maintained.” The and to this court. And, to be consistent, rule we have stated is so elementary that a we shall have to extend it to all omissions further citation of authorities is unnecesof the statute requisites, either in the writ sary. In the case at bar, so far as the recor service, if apparent on the face of the ord discloses, there was nothing to prevent proceedings. If a writ of summons is the defendant in these actions from moving served by reading. the party may disregard to vacate and set aside the judgments in the it, and the judgment is void. This would justice's court, and, had this motion been decertainly work a very important change up- nied, no reason is shown why he could not on this subject, and one of immense conse have appealed to the proper appellate court, quence in a practical point of view,--one and obtained a decision reversing the judgwhich will virtually overthrow the whole ments of the justice's court. To hold that doctrine of the conclusiveness of judgments, the plaintiff in the case at bar could invoke and make them to depend altogether upon the equity powers of the court, ignoring his their entire regularity in regard to all the rights to make a motion to vacate and set preliminary proceedings, so far as they ap- aside the judgments in the justice's court, pear on the face of the papers, which is a and his right of appeal, in case the motion very precarious reliance, and which leaves was denied, to the appellate court, would be everything in such a state of uncertainty as establishing a very dangerous doctrine; for, to render nothing stable or secure, and vir- | if it was proper in this case, we can see no tually to encourage speculation and litiga- reason why it would not be proper in all tion.” In the case at bar no question is where the justice had committed raised as to the summonses issued by the some error which would render his judg. justice, and, had they been served on the ments subject to reversal on appeal to an 5th,—the day they were issued,—the judg. appellate court. Even if the judgment had, ment would have been perfectly valid, as in fact, been void for the reason that there the plaintiff herein would then have had his had been no service whatever upon the three days' notice. As stated by the court, plaintiff in this action, the authorities are presumptively the police justice considered not in entire harmony as to the right of the the return before him, and erroneously de- defendant in such a case to proceed in equity cided that the plaintiff in the actions had to enjoin the proceedings. Mr. High, in his had proper notice. To say, therefore, that work on Injunctions, in speaking of this subthe judgment is void because the justice ject, in § 228 admits that there is a great made an erroneous decision would, as stated conflict in the authorities, though he seems by the supreme court of Vermont, virtually to take the view that the defendant in such overrule the doctrine of the conclusiveness a case would have the right to proceed in of judgments when defects appear in the rec- equity to restrain proceedings under such a ord of such judgments, and would, as stat- judgment; but speaking of judgments that ed by that learned court, work a very great are simply erroneous that author, in § 225. change in the law applicable to judgments. says: “It is a well-established rule that We are clearly of the opinion that the judg. the interference of equity will not be grantments in this case were not void, but simply ed for the purpose of correcting mere irreg.

ularities or informalities in judicial proThis brings us to the last question, name- ceedings. And where a judgment is assailed ly, Was this action in equity to restrain the upon the ground of irregularity in the prodefendants from executing the said judg.ceedings antecedent to obtaining the judg. ments a proper remedy, or was the plain. ment an injunction will not be allowed. tiff required to make his motion in the jus. Thus, in the absence of allegations of fraud, tice's court to vacate and set aside the irregularities in the service of process will judgments, and, if denied, to appeal to the not constitute ground for an injunction upon proper appellate court? In other words, the general principle that equity will not sit Did the defendant in these actions have an as a court of review to revise irregularities in adequate remedy at law? If he had such a proceedings at law. . . And it may be remedy, then the action by injunction pro- laid down as a rule that the powers of equiceedings in a court of equity cannot be sus. ty cannot be invoked to restrain execution tained, for the rule is well settled that. upon the ground of irregularity, since it is where a party has an adequate remedy at the province of a court of law to annul its law, he cannot resort to a court of equity. own process or correct any errors in its own



proceedings concerning executions. Nor, , the offense of practising medicine without a in the absence of fraud, will errors or ir- license. regularities in the action of the court war It is contended by the plaintiff in error rant an injunction against a judgment, es- that the evidence was insufficient to warpecially when the party complaining might rant his conviction, in that it failed to show have availed himself of such errors upon that he was practising, or attempting to an appeal, if prosecuted in due season. practise, medicine within the provisions of And although no remedy be provided by ap- the act of 1903, and that he was simply enpeal from the judgment of a justice, its en- gaged in the business of fitting glasses to forcement will not be enjoined because of the eye. It was proved by the evidence of error in the proceedings.”

Dr. MeNutt, secretary of the board of mediThe learned Circuit Court was clearly in cal examiners, that no license had been error, therefore, in rendering a judgment granted to the plaintiff in error. The state restraining the proceedings upon the judg. then introduced in evidence the following ments in the Justice's Court, and its judg- notice, marked “Exhibit 1:” “Ophthalment and order denying a new trial are re- mology. A Science for the Analysis of the versed, and that court is directed to dismiss Cause of Human Ills and How to Abolish the action.

Them. Everybody should know that this is a science that practises by guesses. It differentiates between functional derange

ments and disease. By its assistance naSTATE of South Dakota

ture cures cross-eyes without operation;

headache without drugs; hysteria without M. F. YEGGE, Piff. in Err.

a straight jacket; female disorders with.

out a trip to the hospital; and hundreds of (.... S. D. ....)

nervous troubles. Simply removing causes

is the secret. A true Ophthalmologist exAn ophthalmologist who prefixes to his plains your case to you. Dr. M. F. Yegge.

name the letters “Dr.” on his sign, and on Huron, S. D. Office rooms over Huronite." notices in which he undertakes to correct cer: There was also evidence tending to prove tain diseased conditions by the fitting of glasses to the eyes, comes within the terms of that the plaintiff in error had a sign in statute providing, that, when a

front of his office with the name “Dr. Yegge" shall append the title “Dr.,” in a medical thereon. There was also evidence tending sense, to his name, he shall be regarded as



to prove that ophthalmology is science practising medicine, within the meaning of

which treats of the physiology, anatomy, the statute which requires a license as a condition precedent to doing so.

and diseases of the eye; that any deformity

in the eye is considered a disease of the eye; (April 5, 1905.)

any abnormal condition of the eye should be

considered as a disease; that it is so conE

RROR to the Circuit Court for Beadle sidered by the profession; and that the fit

County to review a judgment convict- ting of glasses for the relief of defective ing defendant of practising medicine with eyesight is a branch of the practice of medout a license. Affirmed.

icine. The defendant, being called as a witThe facts are stated in the opinion. ness in his own behalf, testified, in subAr. T. H. Null for plaintiff in error. stance, that he had lived in Huron since the

Mr. Aubrey Lawrence, with Messrs. 1st of June, 1903; that he was engaged in Philo Hall, Attorney General, and C. A. optics; that he had an office in the James Kelley, for the State.

Valley Bank building; that he was a gradu

ate of the McCormick School of OphthalCorson, P. J., delivered the opinion of mology of Chicago, Illinois, where they the court:

teach ophthalmology particularly; that it Upon an information duly filed the had been established twelve or thirteen plaintiff in error was tried and convicted of sears; that it is a reputable school; that

NOTE.-For a similar case in this series hold 5 Buswell, 24 L. R. A. 68; State er rel. Swarts ing that a magnetic healer who styles himself v. Mylod, 41 L. R. A. 428 (Christian science); "professor," and holds himself out as a healer State v. Liffring, 46 L. R. A. 334; Nelson v. of disease, is within the terms of a statute re State Bd. of Health, 50 L. R. A. 383 ; Little v. quiring a license from all persons announcing State, 51 L. R. A. 717; State v. Gravett, 5.5 their readiness to cure disease, and who use, L. R. A. 791: Bragg v. State, 58 L. R. A. 923 : in connection with their names, the word “pro State v. MacKnight, 59 L. R. A. 190 (osteopfessor," or any other word intended to desig athy): State v. Biggs, 64 L. R. A. 139 (treatpate them as practitioners of medicine, see ment by

massage, etc.); and Territory Parks v. State, 59 L. R. A. 1990.

v. Newman, 68 L. R. A. 783 (magnetic treat. As to what constitutes practice of medicine ment). or surgery generally, see, in this series, State

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