Blandy v. Modern Box Mfg. Co. , 40 Idaho 356 ( 1925 )

On May 11, 1918, appellant obtained a judgment against respondent. Service of summons in the action was on the county auditor. Respondent did not appear or answer the complaint. On March 2, 1923, respondent filed a motion to vacate and set aside the judgment for the reason that from the judgment-roll it can be determined that the judgment is void; and that no service of summons was made on the defendant.

The motion was argued before the late Judge Flynn, who set the judgment aside, and certified that he considered only the papers constituting the judgment-roll, specifying the papers used, and not including the findings of fact. The findings, of fact are not a part of the judgment-roll when the complaint is not answered. (C. S., sec. 6901.) Judge Flynn very properly determined the question from an inspection of the papers constituting the judgment-roll.

"The district court may at any time vacate or set aside its judgment previously entered when it is apparent from the face of the judgment-roll that such judgment is void." (Nixon v.Tongren, 33 Idaho 287, 193 P. 731. (See, also, O'Neill v.Potvin, 13 Idaho 721, 93 P. 20, 257.) And in deciding whether the judgment should have been vacated, this court should not consider the findings, but should determine the question from an inspection of the judgment-roll. (O'Neill v. Potvin, supra;Nixon v. Tongren, supra.)

In an action against a domestic corporation the summons must be served by delivering a copy thereof to the "president or other head of the corporation, secretary, cashier, or managing agent thereof." (C. S., sec. 6676.) But where all such persons "have moved from or ceased to be a resident of, or be absent from the state, or their names cannot be ascertained by the sheriff or other person seeking to procure service, then service may be made by delivering a copy . . . . to the auditor of the county." (C. S., sec. 6676.) Service was made by delivering a copy of the summons and complaint to the county auditor, for the reason, according to the affidavit of service, that "A.E. Knight, the party whom said defendant company is claiming as the president and sole managing agent thereof, has not been personally present in Benewah county for more than thirty days. . . . ." Conceding that the affidavit might be sufficient to show that A.E. Knight, president and managing agent, had moved from and ceased to be a resident of the state, there is nothing to show why service was not made on the secretary or cashier or "other head of the corporation"; and we cannot presume that all such officers and persons had "moved from or ceased to be a resident of, or be absent from the state, or their names cannot be ascertained," by the person seeking to procure service. The law does not authorize that service of summons on a domestic corporation be made by delivering a copy of the summons to the county auditor except where service cannot be had on the corporation by delivering a copy of the summons to one of the officers of the corporation mentioned in C. S., sec. 6676. The return does not show that the corporation was served with process. It follows that the court did not have jurisdiction to make and enter judgment against the defendant. I do not agree with the statement in the majority opinion that the recital in the judgment that "defendant having been duly served with process" is supported by and is not in conflict with the return; and I am of the opinion that the order of Judge Flynn should be affirmed.

William A. Lee, J., concurs in the foregoing dissent.