Robberson v. Crow , 3 Indian Terr. 174 ( 1899 )

Townsend, J.

The plaintiff below, A. Crow, filed his complaint in equity on December 2(3, 1895, against the' defendants below, appellants here, to restrain the collection of a judgment as against him rendered by J. B. Thompson, a United States commissioner, on the 4th day of September, 1895, in favor of W. F. Robberson. ft appears that Robber-son instituted an action of replevin before said commissioner on July 18, 1895, against the said A. Crow, procuring an order of delivery and a summons to issue, and placed same in the hands of Charles Worley, a constable, and one of the appellants herein, for service; that Worley served the same by handing copy of writ to said A. Crow; that Crow requested said Worley to read same to him; that Worley did so, whereupon said A. Crow informed Worley that he was not the party who had the oxen mentioned in the order of delivery, — that Dave Crow had the oxen; that Crow then handed the copy of process back to the constable, Worley, who received same, and stated to the said A. Crow that the action was wrongfully brought against him (A. Crow), and that he would have it corrected so as to be against Dave Crow, whereupon the said constable, Worley, erased the name of A. Crow wherever it appeared in and on said summons and order of delivery, and substituted the name of Dave Crow, who theretofore was not a party to said replevin action; that said constable then turned the papers over to ’Wirt Randolph, one of the appellants, and deputized said Randolph as a ‘ ‘special officer’ ’ to serve the same on Dave Crow. Randolph served a copy of said order of delivery and summons, as the same had been changed, on Dave Crow, by leaving the same with the mother of said Dave Crow, at the place of residence of said Dave Crow. Said service upon Dave Crow was made on July 22, 1895, and' the return was filed in the commissioner’s court on July 31, 1895, and is in the words and figures following, to-wit:

“Indorsed: Robberson, Indian Territory, July 22, 1895. I certify that I served the within writ on the 22 of July, 1895, by leaving a copy with the defendant’s mother at his house, on the 22 day of July, 1895. [Signed] Wirt Randolph.”

“No.-. Commissioner’s Court. Order of Delivery. W. F. bobberson vs, A. Crow. Issued the 18 day of July, A. D. 1895. Returnable the 8 day of August, A. D. 1895. J. B. Thompson, U. S. Commissioner.

“I hereby appoint Wirt Randolph to serve the within •process. [Signed] C. F. Worley, Constable.”

On the 8th day of August — the return day of process —Dave Crow appeared in person and by attorney; also Robberson, the plaintiff, in person and by attorney; and the case was continued until September 3, 1895. A. Crow was not present in person or by attorney. On August 15th an alias order of delivery and summons was issued, and on September 3d the constable returned the same not served. On the 3d of September the case was continued by agreement to the 4th of September, — Dave Crow and Robberson being the only parties present — when they again appeared, and the case was tried by the commissioner without a jury, and judgment rendered by him for the value of the oxen, damages, and costs against A. Crow and Dave Crow. It appears that the oxen were not taken under the order of delivery, and the judgment was personal. But it nowhere appears by any return whatever that A. Crow had ever been served with process, and it further appears that A. Crow was never present in person or by attorney. The attorney who represented Dave Crow made the following affidavit on December 19, 1895, and subsequently swore to the same in a deposition taken before the master in this case. The affidavit is as follows:

“S. Heard, being of lawful age, and first-duly sworn, upon his oath states: That he is and was during the months of August and September, 1895, a regular practicing attor-' ney in the town of Paul’s Valley, I. T., and as such attorney was employed by one Dave Crow to defend a certain replevin suit which previous thereto had been instituted by W. P. Robberson in the United States commissioner’s court in and for the Second division of the Southern district of the Indian Territory. That during the trial and the pendency thereof affiant represented only the defendant Dave Crow, and did not in any manner represent or have any authority to represent A. Crow. That at the time the said action was finally tried, as well as the time when the same was first set for hearing, the said A. Crow was not present, either in person or by attorney. Witness my hand this, the 19th day of December, 1895. [Signed] S. Heard.

“Subscribed and sworn to before me this, the day and year last aforesaid. [Seal.] Joseph W. Phillips, Clerk, by C. P. Bruce, D. C.”

The question, therefore, presented in this record is whether a judgment rendered by a commissioner, where it appears there was no service of process whatever, and no appearance in person or by attorney, can be enjoined, when he alleges he would have had a meritorious defense had he known that any suit was being prosecuted against him. The plaintiff A. Crow died about April 1, 1896, intestate, and the suit was revived in the name of Francis H. Crow, as special administrator, at the November term, 1896. The appellants submit six assignments of error, which are as follows: “First. Because the court has no jurisdiction to grant the relief prayed. Second. Because the complaint of the plaintiff does not state facts sufficient to.entitle him to the relief for which he prays. Third. Because the plaintiff filed no affidavit as required by section 3751, Mansf. Dig. (section 2510, Ind. T. Ann. St. 1899), of the Laws of the state of Arkansas. Fourth. A bill in equity to prevent the execution of a judgment at law is a collateral attack on the judgment, and evidence aliunde the record is inadmissible to contradict it. Fifth. The judgment rendered in this cause is contrary to the law. Sixth. The judgment is contrary to the law and the evidence. ’ ’

Injunction. Void Judgment The assignments of error in substance embrace the propositions that a court of equity has no jurisdiction to enjoin this judgment and grant the relief prayed for, and that the judgment in this caséis against the law and the evidence. It is said by Mr. Pomeroy that “equity will enjoin a judgment at law where the defendant is prevented from defending by representations that the proceeding will not be carried on against him, and, relying thereon, he does not contest the case, as he might have done, and a judgment is thus obtained against him. ” Note 1 to section 1364, Pora. Eq. Jur., and numerous authorities cited. High. Inj. § 229, says: “And the courts have repeatedly held that judgments recovered before a justice of the peace may be enjoined as void for want of jurisdiction when no proper service of process was had. upon the defendant in the action, and when he had no opportunity to defend. ” In the Kentucky case cited by appellants to sustain their contention the court say: ‘ ‘But as the mode by which a judgment may be vacated, reversed, or modified is elsewhere in the Code provided, the inhibition contained in section 285, Civ. Code Prac., was manifestly intended, as it does in terms apply, not to the

judgment itself, but to proceedings thereon. ” Railroad Co. vs Reasor, 1 S. W. 599. We have no such provision of the-Code providing for vacating, reversing, or modifying the judgments of a United States commissioner’s court. On the other hand, the only limitation upon ' a court of equity is contained in the following: “No injunction shall be granted to stay proceedings upon a judgment of the justice of the peace where the value of the matter in dispute does not exceed $20.00.” Section 3750, Mansf. Dig. (section 2509, Ind. T. Ann. St. 1899.) Further: “All judgments, orders, sentences and decrees made, rendered or pronounced by any of the courts of this state against any one ' without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or; decrees shall be absolutely null and void.” Section 5201, Mansf. Dig. (section 3406, Ind. T. Ann. St. 1899.) How could the commissioner in this case render a judgment against the appellee? When he rendered said judgment, no return had been made of any service, except the return of Randolph, who had been deputized to serve the writ upon Dave Crow, and who returned that he had served the writ upon Dave Crow July 22, 1895, and who filed the same in the commissioner s court July 31, 1895. This return was made upon a writ upon which appellee’s name had been erased, and Dave Crow’s name inserted as the only defendant. There was no return that any service whatever had ever been made upon the appellee by the constable or any one else. The service upon Dave Crow by one without any authority was undoubtedly worthless, but Dave Crow appeared in person and by attorney Heard, and the court thus secured jurisdiction of Dave Crow. But there is no showing that the appellee ever appeared; on the contrary, Heard, the attorney, says he did not appear, either in person or by attorney. There being no return of service, and no voluntary appearance of the appellee, the commissioner had no jurisdiction to render-a judgment against the appellee, and the judgment was void. See Freem. Judgm. § 120a: “In all cases in which a defendant does not voluntarily appear, service of process upon him in some mode authorized by law is indispensable; and if it appears, even in a collateral proceeding, that any judgment has been rendered against one who has neither voluntarily appeared nor been served with process, it must be treated as void.” See Boyd vs Roane, 49 Ark. 397, 5 S. W. 704. Injunction is a proper proceeding when the judgment is void. Black on Judgments quotes from Krug vs Davis, 85 Ind. 311, with approval, the following: “It is a familiar doctrine that such a proceeding to enjoin the enforcement of a judgment by execution constitutes a collateral attack upon the judgment, and cannot be maintained on account of errors or irregularities merely, but only upon a showing that the judgment is void.” Black, Judgm. § 253. See also sections 365, 366. The general rule is well established that equity will not enjoin judgments at law unless some ground is alleged for equitable interference, or that brings the case within the scope of equitable jurisdiction, and makes it unconscionable to enforce the judgment.

Weight given Master’s findings. The master finds ‘ ‘that the constable stated to said A. Crow that the action was wrongfully brought against him (A. Crow,) and that he would have it corrected so as to' be against Dave Crow;” and further, “the said constable, at the instance, I infer, from Worley’s [theconstable’s] evidence, of Robberson [the plaintiff,] and perhaps Randolph, reluctantly mutilated and destroyed said process as a legal instrument by the careful erasure of the name of A. Crow wherever it appeared in and on said summons and order of delivery, and substituted therefor the name of one Dave Crow, who theretofore was not a party to said replevin action.” The master further reports: “I further find by a great preponderance of evidence * * * that the said A. Crow had a valid and meritorious defense to said replevin action;” and further, “that he had no adequate remedy at law. ” The findings of the master are specific, and hi's examination and investigation of the case appear from an examination of the record to have been full and complete, and carefully performed, and the same is entitled to as much weight and consideration as the finding of a jury. In Brown vs Dailey (Tenn. Sup.) 1 S. W. 885, Snodgrass, J., in speaking for the court, says: “It is not sufficient, to reverse the decree upon the entire account, or any item, that it does not affirmatively appear to be clearly right. It must appear affirmatively to be clearly wrong. The master, with the aid of counsel, has time and opportunity to take up and dispose of the matters in the reference item by item. Counsel may then point out errors and omissions, after the report is prepared, and they may be corrected by the master before the report comes before the chancellor for action. If not so corrected, upon specific exceptions, each alleged error is or may be examined by the chancellor,- evidence upon the particular point pro and con heard, argument considered, and each item disposed of after long and minute investigation. When so disposed of, and that disposition is in concurrence 'with the report of the master, necessarily and properly it must be treated by us with at least as much weight as the finding of a jury,”— citing numerous authorities. . The court below confirmed the report of the master, overruling the exceptions of appellants, and rendered judgment as recommended by the master; and where, as in this case, the preponderance of tho evidence sustains the findings, this court will not disturb the judgment based on the report of the master. Gaty vs Holcomb, 44 Ark. 516; Gagle vs Lane (Ark.) 5 S. W. 790; Felner vs Wilson (Ark.) 17 S. W. 587.

The master found that appellee had a meritorious defense to the action before the commissioner, and it is evident that, had the sale gone forward under the execution upon said void judgment, the appellee would have been subjected to expense and damage, and, in all probability, to a multiplicity of suits, to regain his property. The remedy at law was not adequate and complete, and it was a proper case for the interposition of a court of equity by its restraining process of injunction.

Amendments It has been said that the constable made an amended return on the order of the delivery issued by the commissioner in the original replevin suit. This is not borne out by the .record. In fact, the constable (Worley,) as shown by the record, had never made any original return of service of the summons or order of delivery. The replevin case was tided before the commissioner September 4, 1895. The complaint in this case was filed December 20, 1895, and the master’s report was filed in this case March 24, 1897. The exceptions to said report were filed March 26, 1897. The judgment in this case was rendered March 29, 1897» and on same day of the rendition of the final judgment in this case, and more than one year and six months after the date of the rendition of the judgment by the commissioner, the execution upon which this suit was instituted to enjoin, there appears in the record the following: “Now, on the 29th day of March, 1897, come the defendants, and ask leave of the court to allow the officer to amend and. make his return on the original process herein, which was by the court denied and overruled. (See page 114 of this transcript.) And thereafter the defendants by their attorneys, L. C. Andrews and J. B. Thompson, file their written request, for the clerk to incorporate said original writ with the officer’s amended return in the transcript of this case, which said request is in words as follows: ‘In the United States Court in the Indian Territory, Southern District, at Purcell. Before the Honorable C. B. Kilgore, Judge. Francis H. Crow, as Special Admr. Estate of A. Crow, Deceased, vs W. F. Roberson et al. Written Request for Clerk to Incorporate Officer’s Return in Transcript. Come now the defendants, W. F. Robberson, Wirt, Randolph, and Charles F. Worley, and file this, their written request, that the return made by the officer in the case of W. F. Robberson against A. Crow, and offered in evidence in this case, be inserted in the transcript in this case. W. F. Robberson. Wirt Randolph C. F. Worley. ByL, C. Andrews and J. B. Thompson, Attys. for Defendants.’” It does not appear that said written request of the attorneys of appellants was permitted or refused by the court. It has, however, been inserted by the clerk in the record, and is in the words following, to wit: “Which said original writ, with the amended return of the officer, is in words and figures as follows, to wit; ‘United States of America, Indian Territory, Southern District — ss.: Before J. B. Thompson, United States Commissioner for the Southern District of the Indian Territory. W. F. Robberson, Plaintiff, vs A. Crow. Defendant. Order of Delivery. The president of the United States of America, to any constable of the Indian Territory, greeting: You are commanded to take one yoke of oxen, of the value of thirty dollars, from the possession of the defendant A. Crow, and deliver them to the plaintiff, W. F. Robberson, upon his giving bond required by law. And you are also commanded to summon the said A. Crow to appear before me at my office in Pauls’ Valley, in said Southern district of the Indian Territory, on the 8 day of August, A. D. 1895, to answer the claim of said plaintiff, W. F. Robberson, for said oxen, and also for damages, amounting to five dollars, for the detention thereof, and notify the said A. Crow of the time and place of trial. Given under my hand and seal of office at Purcell, this 18 day of July, A. D. 1895, J. B. Thompson, United States Commissioner Aforesaid.’ Which said amended return is as follows: T hereby certify that I received the within order of delivery on the 18 day of July, 1895, and served the same in the following manner on the 21st day of July, 1895, near Robberson, I. T., by then and there giving the said A. Crow a copy thereof, which he returned to me, and I read it to him at his request, and then I again gave same to him, which he kept for about five minutes, and returned to me again, and said that he was not the proper party, but his brother, Dave Crow, was. I took said copy back, and told him if that was a fact the suit had been begun wrong, and we would have to change it. He then asked me what he must do, and I told him if he did not appear judgment would be taken against him. I then took the copy away with me and changed it without authority from the commissioner, and on my own account, on the above suggestion of defendant, and on the day following. The, change was from “A. Crow” to “Dave Crow,” whom deft, had suggested to me. I then left the same with Wirt Randolph, to be served. C. F. Worley, Constable.’ Indorsed: ‘No. 61 Commissioner’s Court. Order of Delivery. W. F. Robberson vs A. Crow. Issued the 18 day of July, 1895. Returnable the 8 day of August, A. D. 1895. J. B. Thompson, U. S. Commissioner. Filed in open court Mar. 29, 1897. Joseph W. Phillips, Clerk.’ ” This is the first that appears of the alleged amended return. It was not before the commissioner in the replevin case, it was not before the master in this case, and its being filed as an amended return was refused by the court, as appears from the following: Order Overruling Motion to Allow Officer to Amend His Return. Again, on this the 29th day of March 1897, the same being the 7th day of the regular March, 1897, term the following, among other, proceedings were had, to wit: ‘A. L. Crow et al. vs W. F. Robberson et al. No. 132. Order Overruling Motion to Amend Return. And now the court is moved to allow the officer to amend & make his return on the original process herein, & the court being advised, doth in all things overrule and deny the said motion. ’ ” We therefore say it is not an amended return. In our opinion, the judgment of the court below was correct, and it is therefore affirmed.

Springer, C. J., and Clayton and Thomas, JJ., concur.