Crane v. Cummings

HARRISON, J.

Action to quiet title to certain real estate. Each party derives his title to the land from Thomas W. Kizer,—the plaintiff by virtue of a deed of conveyance bearing date June 14, 1899, and the defendants by virtue of a sale made December 18, 1897, under a judgment of the superior

[202]

court in an action against Kizer to foreclose the lien of a street assessment upon the land. Judgment was rendered in favor of the defendants, and the plaintiff has appealed.

The street assessment upon which the action is brought was made February 7, 1895, and the action thereon was commenced December 6, 1896, against F. W. Kizer. An amended complaint was filed July 22, 1897, in which the defendant is named Thomas W. Kizer. Upon this amended complaint a summons was issued, and service thereof was made upon Thomas W. Kizer by publication.

1. It is contended by the appellant that, inasmuch as more than two years had expired before the amended complaint was filed, the lien of the assessment had ceased to exist and the judgment foreclosing the same was therefore void. This objection is a collateral attack upon the judgment, and cannot prevail unless the judgment is absolutely void. The superior court had jurisdiction of the action and of the defendant against whom its judgment was rendered. If there was any defense to this action, it could have been presented by the defendant and its sufficiency determined by that court. If judgment was rendered thereon in disregard either of the law or of the facts applicable thereto, it could have been reviewed upon an appeal therefrom, but if no appeal was taken the judgment was conclusive upon the defendant. Whether the defendant made any defense to the action or suffered default is immaterial. He had the opportunity to make any defense in his power, and if he neglected to do so the judgment is equally impervious to collateral attack as though such defense had been in fact made and disregarded by the court. A judgment rendered by default is not void because the complaint fails to state a cause of action. Neither is it void because it appears from the complaint that the action is barred by the statute of limitations.

(Moore

v.