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200, 17 S. W. 806; Peck v. Strauss, 33 Cal. 678; Ballinger v. Tarbell, 16 Iowa, 492, 85 Am. Dec. 527.
A proceeding to enjoin the enforcement of a judgment or decree by execution or decretal order is a collateral attack upon the judgment, and cannot be maintained for mere errors or irregularities.
to him, proceeded to, and did, enter judgments against him, and in favor of the defendant Murphy, at the hour of 8 o'clock of the 8th day of November, 1902, aforesaid, whereby said Murphy was awarded the possession of the property described in said Murphy's complaint, besides costs of suit; that each and every one of the judgments rendered by the said Brockway, as hereinbefore set out, in favor of defendant Murphy and against said plaintiff, is null and void, and of no force and effect, for the reason that said summonses were not served as required
Davis v. Clements, 148 Ind. 605, 62 Am. St. Rep. 539, 47 N. E. 1056; Shrack v. Covault, 144 Ind. 260, 43 N. E. 229; Krug v. Davis, 85 Ind. 309; Fitch v. Byall, 22 Ind. App. 628, 47 N. E. 180. 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 whatever. And the court concludes from the said findings that the three summonses issued in the three several cases aforesaid were not served on the defendant in said action, and that the said Brockway, as justice aforesaid, acquired no jurisdiction by which he could render or enter judgments in said several causes against the said George Kerr, sheriff, aforesaid; that said judgments and all proceedings thereunder are void. The court thereupon entered judgment restraining the said defendants, and all persons claiming under them, from enforcing said judgments by execution or otherwise.
This is an action in equity brought by George Kerr, as sheriff of Beadle county, against John Murphy, R. B. Brockway, justice of the peace, and A. B. Kenyon, coroner of Beadle county, to restrain the defendants from enforcing three certain judgments alleged to have been entered in the police justice court of Huron by the defendant R. B. Brockway, police justice, in actions wherein John Murphy was plaintiff and George Kerr was defendant. Findings and judgment were in favor of the plaintiff, and defendants have appealed.
The court's findings are, in substance, as follows: That said Brockway was the duly elected, qualified, and acting justice of the peace in and for the city of Huron; that defendant Kenyon was the duly elected, qualified, and acting coroner in and for Beadle county; that the plaintiff was the duly elected, qualified, and acting sheriff of Beadle county; that on the 5th day of November, 1902, the defendant John Murphy commenced three actions against the sheriff as sheriff of the county, in the court of the defendant Brockway; that said actions were in claim and delivery, to recover possession of certain personal property which had been levied upon and was in the possession of the plaintiff, Kerr, as sheriff aforesaid, as the property of one S. D. O'Conners; that on November 5, 1902, three summonses were issued by said Brockway, as such police justice, in said actions, requiring the plaintiff herein to appear before said Brockway on the 8th day of November, 1902, at the hour of 8 o'clock A. M., to answer the complaint of the defendant Murphy; that each and every one of said summonses were served on the plaintiff herein on the 6th day of November, 1902; that the plaintiff failed to appear in said Brockway's court in response to said summonses, or any one of them, on the 8th day of November, or at any time, and that the said Brockway, as justice aforesaid, without the knowledge or consent of the plaintiff herein, and without notice
It will be seen from the findings of the court that the summonses in the three actions were dated the 5th day of November, 1902; that they were not served until the 6th; and that judgments were entered thereon on the 8th by default. Two questions are therefore presented by the record: (1) Were the judgments so entered by the police justice void or simply erroneous? (2) Was a suit in equity a proper proceeding to vacate and set aside the said judgments, and to restrain the defendants from proceeding thereunder?
It is contended by the appellants that the judgments were not void; that, as to the defective service upon the plaintiff, as sheriff, and defendant in those actions, in giving him but two days in which to answer, instead of three days, it was simply an irregularity on the part of the justice, which could only be taken advantage of in the justice court by motion to vacate and set aside the same, and, if denied, by appeal to the appellate court; that the defective service did not deprive the justice of jurisdiction; that, the moment that personal service was obtained on the plaintiff as defendant in the claim and delivery actions, jurisdiction attached, subject to be defeated by the proper proceedings before the justice, and by appeal to the circuit court having appellate jurisdiction of the same.
It is contended, on the other hand, by the | 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 judg three 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 the time fixed for the appear- court which gave it, upon seasonable and ance of the defendant." proper application, or reversed upon appeal. Isaacs v. Price, 2 Dill. 351, Fed. Cas. No. 7,097." Judge Black, in his work on Judg. ments, § 224, says: "Although the service of process in an action may have been characterized by some defect or irregularity, it does not necessarily follow that the ensuing judgment will be void. For, if the party would take advantage of such a matter, he must do so in the action itself, by some proper motion or proceeding. It is only when the attempted service is so irregular as to amount to no service at all that there can be said to be a want of jurisdiction. In any other case there may be error in the subsequent proceedings, but they will be sustained against a collateral attack." In § 223 that learned author says: "But where it appears that there was notice, though defective, and service, though imperfect, a decision of the court to which the process was returnable that such notice and service were sufficient will not be held void in a collateral proceeding. Again, a judgment in an action in which the required number of days' notice was not given to the defendant is erroneous, but not void, and cannot be questioned in a collateral proceeding."
It will thus be seen that the time specified in the summons shall, when served within the county, be not less than three nor more than twelve days from the date of the service of the same, and that, when the defendant resides in the county, he cannot be served within two days of the time fixed for the appearance of the defendant. These provisions of the Code are mandatory, and cannot be dispensed with, unless waived by the defendant by appearing in the action, generally at the time specified in the summons. The service of the summonses in the cases in the justice's court being made on the 6th of November, and the summonses requiring the defendant thereunder to appear on the 8th day of the same month, under no rule or computation of time gave him more than two days' notice. The view that a judgment in such a case is irregular, but not void, seems to be sustained by the great weight of authority. Mr. Freeman, in his work on Judgments, vol. 1, § 126, says: "There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. From the moment of the service of process the court has such control over the litigants that all its subsequent proceedings, however erroneous, are not void. If there is any irregularity in the process, or in the manner of its service, the defendant must take advantage of such irregularity by some motion or proceeding in the court where the action is pending. The fact that defendant is not given all the time allowed him by law to plead, or that he was served by some person incompetent to make a valid service, or any other fact connected with the service of process on account of which a judgment by default would be reversed upon appeal, will not ordinarily make the judgment vulnerable to a collateral attack. In case of an attempted service of process, the presumption exists that the court considered and determined the question whether the acts done were sufficient or insufficient. If so, the conclusion reached by the court, being derived
In the case of Ballinger v. Tarbell, 16 Iowa, 491, 85 Am. Dec. 527, the supreme court of Iowa, speaking by Judge Dillon, says: "It is claimed by the defendants, Claggett, Browne, and Claggett, that the judgment of the plaintiff against Tarbell and Robertson was wholly void as against Tarbell, because the justice of the peace who rendered the same had no jurisdiction of the person of the defendant Tarbell; and this is the first question which we are called upon to determine. . . That this service, as to Tarbell, was defective, is apparent, because the statute requires five days' notice, and here were only four. It may also be defective because served by the justice himself, and not the constable. It was therefore clearly erroneous in the justice to have rendered judgment against Tarbell on this service. It would have been,
it is in some respect deficient or irregular. In the latter cases, jurisdiction attaches, subject to be defeated by objections to the irregularity, interposed in season in some direct manner. In the former class, jurisdiction is not obtained if the law requires service. Where the facts touching the acquisition of jurisdiction are fully disclosed. the principles of law governing liability to collateral attack are applied no less favorably to judgments of justices of the peace than to the adjudications of courts having more extensive powers. We conclude, therefore, that, on principle, the shortness of the service on Mr. Bouton furnishes no substantial ground in the present action to deny effectiveness to the judgment in the condemnation case. . . In this condition of the precedents in Missouri, we have felt at liberty to re-examine the subject, and to declare the law as seemed in conformity with correct principles. In doing so, we find that the position we have taken has ample support in well-considered cases in other states bearing upon the precise point of present controversy. Ballinger v. Tarbell (1864) 16 Iowa, 491, 85 Am. Dec. 527; McNeill v. Hallmark (1866) 28 Tex. 157; Glover v. Holman (1871) 3 Heisk. 519; Nelson v. Becker (1875) 14 Kan. 509; Betts v. Baxter (1880) 58 Miss. 334; Bowman v. Venice & C. R. Co. (1882) 102 III. 472; Jackson v. State (1885) 104 Ind. 516, 3 N. E. 863."
without doubt, reversed on writ of error. But it was erroneous simply, and not void. It is not a case where there is no service at all, but a case where there was a defective service. The justice erred in deciding that this service authorized him to render judgment against Tarbell; but neither Tarbell nor his assignees can question the validity of this judgment, or claim to have it treat ed as void in this collateral proceeding.”
This question has been very fully considered by the supreme court of Missouri in Leonard v. Sparks, 117 Mo. 103, 38 Am. St. Rep. 646, 22 S. W. 899, and that learned court arrives, after an exhaustive review of the authorities, at the same conclusion, and in its opinion says: "But was complete jurisdiction obtained over Mr. Bouton? The latter personally received an official command to appear in the condemnation case before the mayor at a time named. The notice itself was valid and regular, in the prescribed statutory form, and duly served on Mr. Bouton within the territorial jurisdiction of the mayor. Mr. Bouton was entitled by law to six days' notice; but the mayor would have had jurisdiction over him if he had appeared without any notice, as he might have done. So, also, might he have objected to the shortness of the service, and have asserted his right to the full six days' notice by moving at the proper time to make that objection. But he did not see fit to do so. He was as competent to waive the full length of time of service as he was to appear without any notice whatever. The personal service of the process of the court brought the judicial power of the latter to bear upon him. He had his 'day' to object to the process, if he did not deem it sufficient because not timely, or for any other reason; but he did not avail himself of that opportunity. He certainly could not, by ignoring the command of the writ, deprive the court of authority to determine as to the sufficiency of its service. It was for the court, not the party, to decide whether or not it was sufficient. It held it to be good, and rendered judgment accordingly. In contemplation of law, Mr. Bouton was before the court, for he had been personally summoned to appear there. and might have done so. If the call for his appearance was too sudden, the court's ruling that it was adequate may be error, which could have been rectified by seasonable and direct moves for that purpose; but such error could not defeat the court's jurisdiction to render a judgment conclusive upon him, or subject that judgment to successful attack collaterally. A broad distinction is to be drawn between cases where no service on defendant appears, and those in which service is shown, but where
This question was also very fully consid ered by the supreme court of Vermont in Hammond v. Wilder, 25 Vt. 343, in which that court, speaking by Redfield, Ch.. J., says: "Two questions arise in the present (1) If a writ of attachment, returnable before a justice in a different county from that in which it is served, be served by attaching property less than twelve days before the return day, and no appearance is made by defendant, and judgment is given by default, is the judgment valid? Is there any such case where the defect has been held fatal to the proceeding when the defendant does not appear? So far from this, it is true that even matters of error, and which, on writ of error, would be held fatal to the proceeding, when fully apparent upon the record, do not render the judgment void. There is no case in which the judgment of a court of record of general jurisdiction has been held void unless for a defect of jurisdiction. This seems to be conceded in argument, and it is attempted to make this defect amount to a want of jurisdiction. But this is certainly a new view of the subject. It is but a defect of service, and not more important than thousands of other defects. It was never supposed before that. 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 t 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 judg which 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 cases 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 irregularities or informalities in judicial proceedings. And where a judgment is assailed upon the ground of irregularity in the proceedings antecedent to obtaining the judg ment an injunction will not be allowed. Thus, in the absence of allegations of fraud, irregularities in the service of process will not constitute ground for an injunction upon the general principle that equity will not sit as a court of review to revise irregularities in proceedings at law. And it may be laid down as a rule that the powers of equity cannot be invoked to restrain execution upon the ground of irregularity, since it is the province of a court of law to annul its own process or correct any errors in its own
This brings us to the last question, namely, Was this action in equity to restrain the defendants from executing the said judgments a proper remedy, or was the plaintiff required to make his motion in the justice's court to vacate and set aside the judgments, and, if denied, to appeal to the proper appellate court? In other words, Did the defendant in these actions have an adequate remedy at law? If he had such a remedy, then the action by injunction proceedings in a court of equity cannot be sus tained, for the rule is well settled that. where a party has an adequate remedy at law, he cannot resort to a court of equity.
the offense of practising medicine without a license.
proceedings concerning executions. Nor, in the absence of fraud, will errors or irregularities in the action of the court warrant an injunction against a judgment, especially when the party complaining might have availed himself of such errors upon an appeal, if prosecuted in due season. And although no remedy be provided by appeal from the judgment of a justice, its enforcement will not be enjoined because of error in the proceedings."
It is contended by the plaintiff in error that the evidence was insufficient to warrant his conviction, in that it failed to show that he was practising, or attempting to practise, medicine within the provisions of the act of 1903, and that he was simply engaged in the business of fitting glasses to the eye. It was proved by the evidence of Dr. McNutt, secretary of the board of medical examiners, that no license had been granted to the plaintiff in error. The state then introduced in evidence the following notice, marked "Exhibit 1:" "Ophthal
The learned Circuit Court was clearly in error, therefore, in rendering a judgment restraining the proceedings upon the judgments in the Justice's Court, and its judgment and order denying a new trial are re-mology. A Science for the Analysis of the versed, and that court is directed to dismiss the action.
Cause of Human Ills and How to Abolish Them. Everybody should know that this is a science that practises by guesses. It differentiates between functional derangements and disease. By its assistance nature cures cross-eyes without operation; headache without drugs; hysteria without a straight jacket; female disorders without a trip to the hospital; and hundreds of nervous troubles. Simply removing causes is the secret. A true Ophthalmologist explains your case to you. Dr. M. F. Yegge. Huron, S. D. Office rooms over Huronite." There was also evidence tending to prove that the plaintiff in error had a sign in front of his office with the name "Dr. Yegge" thereon. There was also evidence tending to prove that ophthalmology is science which treats of the physiology, anatomy, and diseases of the eye; that any deformity in the eye is considered a disease of the eye; any abnormal condition of the eye should be considered as a disease; that it is so considered by the profession; and that the fitting of glasses for the relief of defective eyesight is a branch of the practice of medicine. The defendant, being called as a witness in his own behalf, testified, in substance, that he had lived in Huron since the 1st of June, 1903; that he was engaged in optics; that he had an office in the James Valley Bank building; that he was a graduate of the McCormick School of Ophthal
STATE of South Dakota
M. F. YEGGE, Plff. in Err.
An ophthalmologist who prefixes to his name the letters “Dr." on his sign, and on notices in which he undertakes to correct cer tain diseased conditions by the fitting of
glasses to the eyes, comes within the terms of a statute providing, that, when a person shall append the title "Dr.," in a medical sense, to his name, he shall be regarded as practising medicine, within the meaning of the statute which requires a license as a condition precedent to doing so.
(April 5, 1905.)
The facts are stated in the opinion.
Mr. T. H. Null for plaintiff in error. Mr. Aubrey Lawrence, with Messrs. Philo Hall, Attorney General, and C. A. Kelley, for the State.
Corson, P. J., delivered the opinion of mology of Chicago, Illinois, where they the court: teach ophthalmology particularly; that it had been established twelve or thirteen years; that it is a reputable school; that
Upon an information duly filed the plaintiff in error was tried and convicted of
NOTE. For a similar case in this series holding that a magnetic healer who styles himself "professor," and holds himself out as a healer of disease, is within the terms of a statute requiring a license from all persons announcing their readiness to cure disease, and who use. in connection with their names, the word "pro fessor," or any other word intended to desig nate them as practitioners of medicine, see Parks v. State, 59 L. R. A. 190.
As to what constitutes practice of medicine or surgery generally, see, in this series, State
v Buswell, 24 L. R. A. 68; State ex rel. Swarts v. Mylod, 41 L. R. A. 428 (Christian science); State v. Liffring, 46 L. R. A. 334; Nelson v. State Bd. of Health, 50 L. R. A. 383; Little v. State, 51 L. R. A. 717; State v. Gravett, 55 L. R. A. 791: Bragg v. State, 58 L. R. A. 925; State v. MacKnight, 59 L. R. A. 190 (osteopathy): State v. Biggs, 64 L. R. A. 139 (treatment by baths, massage, etc.); and Territory v. Newman, 68 L. R. A. 783 (magnetic treatment).