Butler v. Soule

California Supreme Court Mar 20, 1899 No. S. F. No. 1168Published

Before: Dyke

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Holding. The court affirmed the denial of a motion to vacate a foreclosure decree, holding that the judgment was not void on its face because the judgment-roll contained recitals of proper service and jurisdiction, and the motion was untimely under the six-month limit.

Issues

Whether a foreclosure decree is void on its face when the judgment-roll contains recitals of proper service and jurisdiction.
Whether a trial court's order setting aside a prior judgment is subject to collateral attack in the absence of a direct appeal.
Whether a motion to vacate a judgment filed ten months after entry is barred by the statutory time limit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The judgment of a court of general jurisdiction is conclusively presumed to be correct, unless the record itself of the judgment shows that the court did not have jurisdiction of the subject matter of the action, or of the person of the defendant.”

Synopsis

Foreclosure of Mortgage—Recitals in Decree—Jurisdiction—Motion to Vacate Judgment.—Where a decree rendered upon the foreclosure of a mortgage recites due service of summons and a copy of the complaint upon defendants named therein, including the mortgagor, and there is nothing in the judgment-roll to contradict or impeach the recitals contained in the decree, the facts recited must be deemed to be true; and a tenant in possession under the mortgagor, who moves to vacate the decree for want of jurisdiction over the premises, or over the person of the mortgagor, is concluded by the recitals of the decree, which import absolute verity.

Id.—Motion to Vacate Second Judgment—Vacation of First Judgment for Inadvertence—Presumptions—Collateral Attack.—The fact that the motion was made to vacate a second judgment does not entitle it to be entertained, where the second judgment is not void upon its face, and no fraud or Imposition is shown in procuring its entry; and where the record shows that the first judgment was vacated for Inadvertence, and that the time for appeal from the order vacating, it had expired, without any appeal therefrom or modification thereof, it will he presumed, upon the collateral attack thereon made upon the motion to vacate the second judgment, that the order vacating the first judgment was properly made, and that circumstances arose which justified it, and that the court had jurisdiction to enter the second judgment.

Id.—Motion Barred by Lapse op Time.—A notice of motion to vacate a judgment which is not void upon its face, nor shown to he fraudulent, served and filed after the lapse of six months from the entry of the judgment, is barred by lapse of time.

Id.—Parties to Motion—Junior Mortgagee.—A junior mortgagee whose mortgage has been foreclosed by the second judgment, Is unaffected by the motion to vacate the judgment, if not brought in on the motion as a party thereto.

VAN DYKE, J. This appeal is taken from an order of the court below entered the fifteenth day of February, 1897, denying the motions of the appellants, said defendant Soule, and said Burt, a tenant in possession of said premises under the mortgagor Soule, to vacate and set aside a judgment and decree of foreclosure made and entered in said court on the 6th of April, 1896. The motion to vacate and set aside said judgment, as stated in the notice for the same, is based upon the ground that it “was and is absolutely void, for the reason that the said court never acquired jurisdiction over the premises described in the so-called decree, or any part thereof, or over the person of the defendant A. C. Soule in said action, who was the owner [71]in fee of the said premises, to give or make said so-called judgment or decree,” and that the right of Burt, the said tenant in possession of the premises described in the judgment or decree of foreclosure, is independent of and beyond the reach or control of said judgment or decree. The said judgment or decree of April 6, 1896, recites: “And due proof was made to the court, that the defendants, A. C. Soule, Grace IT. Soule, Alfred J. Rieh, W. J. Adams, San Francisco Lumber Company (a corporation), and Thomas Fanning (sued as John Doe), were each duly-served with summons and copy of the complaint herein, and the time for them to appear and plead herein allowed by law having expired, and none of them except the said Thomas Fanning having made appearance, the default of each of them, except the said Thomas Fanning, was heretofore duly entered herein”; and further recites that said A. C. Soule and Grace IT. Soule, and J. J. Rauer, assignee of A. C. Soule, insolvent, sued herein as Richard Roe, were each duly served with a copy of the answer and cross-complaint of the defendant Thomas Fanning, and the time for them to appear and plead therein allowed by law having expired, and having made no appearance, their default for not answering said cross-complaint was duly entered.

There is nothing in the judgment-roll to contradict or impeach the recitals contained in the decree, and therefore the facts recited are deemed to be true, and they show that the court had jurisdiction of the subject matter and of the parties. “The judgment of a court of general jurisdiction is conclusively presumed to be correct, unless the record itself of the judgment shows that the court did not have jurisdiction of the subject matter of the action, or of the person of the defendant. When the court has such jurisdiction, its record speaks absolute verity, because it is the court’s record of its own acts; and such jurisdiction will be conclusively presumed, unless the contrary appears upon the face of the record.” (Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491.)

Butler v. Soule

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