Fox v. Mick

SHAW, J.

Action to recover upon an instrument purporting to be a deficiency judgment rendered by the district court of Arapahoe County, Colorado, in favor of plaintiff and against defendants herein. Judgment went for defendants. Plaintiff’s motion for a new trial was denied, and he appeals from the order of court denying same.

The suit wherein the judgment was rendered by the district court of Colorado was one instituted to foreclose a mortgage executed to defendant Brooks by defendant Mick for the purpose of securing the payment of a certain promissory note made and delivered by her to Brooks. Defendant Mick deeded the mortgaged property to one White, who assumed and agreed to pay the amount of the mortgage. Brooks assigned the note and mortgage to plaintiff herein. At the time of the commencement of the suit all of the defendants therein, including White, were residents of California. Plaintiff secured the signatures of both Mick and Brooks to an indorsement upon the original summons, the effect of which was to enter their voluntary appearance in the action, waive answer and consent to a trial without notice to them, and likewise secured an entry of appearance by White, agreeing that no personal judgment should be entered against him. In their answer defendants alleged that the signatures to the indorsement claimed by plaintiff to constitute their general appearance in the action was procured by the misrepresentation, fraud and trickery of plaintiff, whereby they were led to believe that the effect of such appearance was merely in lieu of and equivalent to service by publication, and the court in effect so found. Appellant attacks' this finding upon two grounds: 1. That as the judgment was rendered by a court of general jurisdiction, it must, in the absence of a direct attack thereon, be deemed to have had jurisdiction, and,

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hence, it cannot be impeached or attacked collaterally; and 2. That the evidence is insufficient to support the finding. Neither position is tenable. “When a judgment recovered in one state is pleaded or presented in the courts of another state, whether as a cause of action or a defense or as evidence, the party sought to be bound or affected by it may always impeach its validity and escape its effect by showing that the court which rendered it had no jurisdiction over the parties or the subject matter of the action.” (23 Cyc. 1578.) Whatever may have been the law as announced by the earlier decisions, it is now well settled that the record in such case is not conclusive upon the question of jurisdiction, but may be controverted by extraneous evidence.