Southern Pine Lumber Co. v. Ward

Opinion of the court by Gillette, J'.: In the consideration of this case we have first presented for the determination of the court, certain motions to dismiss the petition in error, filed by the defendants in error, Ward and G. M. D. Grigsby and D. J. Grigsby. *144 As the motion filed on behalf of Grigsby and Grigsby adopts and approves the motion to dismiss filed by defendant-in error Ward, we will determine the motion upon the grounds stated hr his motion. The first ground is that as the case made was signed and settled by the trial judge March 15, 1904, the plaintiff iu error amended it by inserting therein a certificate of the clerk of the district court to the effect that purported copies of ■pleadings, judgments, orders, etc., contained in said case made were true-; second, by inserting at page 87 1-2 of the case made a statement that “all of said evidence so introduced at said trial * * * * * are in the words and figures as follows.” We have examined the case made at page 87 1-2 of the record as well as the record, and are unable to determine therefrom that it was “inserted” in the case made or to verify from anything that appears of record, the allegations of the motion. There is nothing connected with page 87 1-2 of the record that could justify a statement that it was not there at the time the trial judge settled and signed the case, the same as it is at the present time, and must therefore be treated as a part of the case made, which was settled and signed by the trial court; and with reference to the certificate of the clerk at page 104, being the last page of the record, and following the certificate of the judge to the case made, it is no part of the case made and is not an amendment to it, the judge having certified that the record preceding his certificate is the case made which he signs and settles as such. The certificate of the clerk afterwards added does not refer to the evidence, but is a certificate to the correctness of the copies of the files which are on file in this office. Such certificate *145 could serve no purpose connected with the case, unless possibly at some state of the proceedings the record as made up might be used as a transcript, instead of a case made, in which case the certificate of the clerk, and not the certificate of the trial judge, would be of value. The second and third grounds of the objection will be considered together. They allege that the case made does not show that it contains all the evidence before and considered bjr the lower court in the trial of the case. The case made contains this declaration: “And at the trial of said action, the said cause was tried to the court without the intervention of a jury. The parties appearing, introduced their evidence, and certain orders and rulings were made at said trial, and certain objections made, and exceptions saved. All of said evidence so introduced at said trial in said action, and the objections made and exceptions saved, and the orders and rulings of the court, are in words and figures as follows, to wit:” It will be observed that the language used is that the record contains all of the evidence offered upon the trial. We are cited by counsel to a number of authorities which are-offered as sustaining this objection. An examination of them shows that the word “testimony” was used instead of evidence. There is a broad distinction between the .two words.. The word “testimony” means statement by witnesses under-oath. while the word evidence, in its legal acceptance, includes-all the means by which any alleged matter of fact under investigation is established or disproved. Testimony is not sjoionjunous with evidence, as the word evidence, when addressed to a particular cause, covers all the testimony, records, documents, papers, and proofs submitted for the considera *146 tion of a court or jury; and where, as in this case, the record shows that all the evidence introduced at a trial is contained in the case made, in the absence of some showing to the contrary it must bo held to be all the evidence produced to or considered by the court below. The fourth ground of the motion is that summons in error was not issued within one year from the date of the judgment, to wit: March, 16, 1903, and in this connection counsel for the defendants Grigsby and Grigsby move a dismissal of the case because no case made was presented within three days after judgment was rendered, nor was an extension of time granted within three days; that the term of court was allowed to adjourn without time being granted within which to present and settle a case made, and if it be considered that time was allowed, the same was not prepared and settled within the time so allowed. The judgment was entered on the 16th day of March, 1903, and summons in error was issued March 16, 1904. The record in this case shows that a motion for a new trial was made and filed March 17, 1903, was considered and overruled on April 4, 1903, at which time Ihe appellants excepted to the order overruling the motion, and were allowed sixty days in which to make and serve a case made, and thereafter from time to time up’ to and including December 22, 1903, for good cause shown, the time -was extended 60 days. On the 12th day of October, 1903, however, counsel for defendant in error Ward, acknowledged service of the case made, and on October 15, 1903, counsel for defendants Grigsby and Grigsby, partners, also acknowledged service of the case made on behalf of G. M. D. and D. J. Grigsby, comprising the firm *147 of Grigsby Bros,, and each of them. On March 14 the case made was presented to the trial judge for settlement, after due notice to Ward and the Grigsbys, and was settled and signed on March 15, 1904. As to each of the objecting defendants Ward and Grigs-bvs, the case as shown by the foregoing record was served within the time allowed by the orders of the court extending the time. On the 12th day of September, 1903, the defendants in error, Blmcoe, McNeal, Griswold and DeBois, in writing, waived service upon them of the case made, and notice of signing and settlement of the same, also of the service of the summons in error. October 14, 1903, the American Exchange Bank of St. Louis waived service of case made upon it, which provided that such waiver should not constitute an entry of appearance, and afterwards on the 18th of February, 1904, said bank by its president acknowledged service of the case made. October 16, 1903, Benjamin Whitaker waived service of case made, and notice of the time of settling same. March 5, 1904, the American Exchange Bank waived notice of the time and place of settling and filing the case made. Under this status of the record we are unable to understand the contention of counsel. The language used with reference to the settling and signing of the case made would seem to indicate that they understood the extension of time granted was an extension of time within which to have the case made settled and signed by the court. It is argued by counsel for defendants Grigsby that the. last extension December 22, 1903, of sixty days, expired February 21. 1904, and case made was not settled until March 11-following. which was too late, as extension of time expired *148 February 21. The law of proceeding in. ercor by ease made is manifestly misunderstood by counsel. The extension of time to make and serve a case made is not an extension of time within which the same may be settled and signed by the court. The case made must be made within three days of the rendition of the judgment and served upon the opposing party, unless for good cause such time is extended by order of the court or judge. After service of the case made the same may be settled and signed by the court or judge when presented by either party upon notice to the other within one year of the date of rendition of judgment. The objection therefore that the case was not settled within the time allowed by the court is without foundation. The objection that no case made was presented within three days, and no extension of time granted within three days, and that the court adjourned without time being granted, presents no substantial ground for the motion to dismiss .thé appeal. Under the practice in this Territory, the objections and exceptions taken and allowed upon the trial to the proceedings there had, and which are relied upon as error, are preserved by a motion for a new trial, which may be filed within three days after the rendition of judgment, or the return of a verdict, and until after this motion for a new trial is heard and passed upon by the -court, there is no reason or grounds for the making and service of a case made. The action is pending in the trial court upon the motion for a new trial, and may be disposed of upon the application of either partyc The verdict or judgment, if one had been entered in the ease, does not become final in the court below until such motion for a new trial has been heard and determined, *149 and upon which hearing, if exceptions are taken to the rulings of the court upon the motion for a new trial, the court may then for good cause extend the time within which the case may be prepared and served by the party objecting, upon the adverse party. The grounds of the motion that summons in error was not issued within one year from the rendition of judgment, cannot be sustained, even though it be granted that such case must be settled and summons issued thereon within one year of the date of the rendition of judgment. The record shows judgment to have been entered March 16, 1903, and the case made to have'been filed in the supreme court and summons was issued thereon as conceded on the 16th day of March, 1904. Sec. 4918, Wil. Ann. Stat. provides: “The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded.” This statute was borrowed by this Territory from the state of Kansas, where fit had been -passed upon and construed many times prior to its adoption here. The precise point under consideration here was considered by the supreme court of Kansas in Board of County Commissioners of Smith County v. Labor, et al., 15 Pac. 577. Tire court in that case say: “A proceeding in error, commenced in the supreme court on the same day- of the same month of the next year after an order or judgment sought to be reversed, is made or rendered, is commenced within one year, and in proper time.” This objection cannot therefore be sustained. *150 The fifth ground of the motion to dismiss is that the ease made was not served upon a number of necessary parties naming S. E. Pentecost, trustee, his alleged representatives Dimgan, Bannister & Elder, the Southern Pine Lumber Co. a partñorship, and Grigsby Bros., partnership. It is not shown in what manner S. E. Pentecost was interested in the proceedings in error by which this case was brought to this court. He was neither judgment creditor nor debtor, and had no personal estate in the property involved, was dead when the ease was tried in the court below, and the case was tried without being revived as to him; his cestui que trust had parted with its interest in the property involved by an assignment thereof to .the defendant in error, Ward. His legal representatives were not in any wise affected or interested. The judgment in the court below did not, and an affirmation or modification of that judgment could not affect his estate, nor could his legal representatives be held under the circumstances to be charged with any duty that he was charged with as trustee. We therefore hold that he was not a necessary party to the proceedings here sought to be reviewed. The ease of Jihnerl v. Conde, 39 Kansas, 265, is not in point. In that case the judgment creditor .died and his representatives were necessary parties. As to the partnership, Southern Pine Lumber Co., and Grigsby Bros, the record shows service of case made on the two Grigsbys as partners and each of them, and this record further shows that these persons were the partners composing the firm of Grigsby Bros. We are unable to understand what counsel meant by such an objection. A partnership is an inanimate thing and is brought into court by service upon the individuals composing *151 the firm, and when so served the individuals and the partnership are in court for all purposes of the case. The partnership, Southern Pine Lumber Co., was composed of T. L. L. Temple and Benjamin Whitaker as shown by the record. Mr. Whitaker, October 16, 1903, waived service of case made upon him, and notice of time and place of settling and signing the same. His partner, T. L. L. Temple, is one of the plaintiffs in error, and in fact the principal mover in that behalf, and is therefore in court for all the purposes of this case. The sixth ground of the motion has less reason for its support than the fifth. It is based upon the alleged fact that the American Exchange Bank of St. Louis and G. M. D. and. D. J. Grigsby as individuals are not by the petition in error made parties to this proceeding in error, and are necessary to its determination. This ground of the motion cannot bo sustained. By the language of the petition in error G. M. D. Grigsby and) D. J. Grigsby are made parties defendant. There is no allegation which makes the partnership firm of Grigsby Bros, a party defendant; but the petition reads, “G. M. D. Grigsby and D. J. Grigsby partners as Grigsby Bros.” The words “partners as Grigsby Bros.,” must be held to be words descriptive merely of G. M. D. Grigsby and I). J. Grigsby , and these persons having been summoned, entered a general appearance in this court as to this procedure in error, this court having acquired thereby jurisdiction to determine their respective rights by virtue of the proceedings had in the court below. With reference to the American Ex change Bank of St. Louis it appears from an examination of the record that the action was one to foreclose a trust deed in favor of defendant in error Ward, and against the defendants *152 named, whose interest it is alleged was inferior to the rights of Ward under the trust deed. In this action the American Exchange Bank was not made a party defendant. Grigsby and Grigsby were made parties defendant, and they answered confessing the right of action of the plaintiff Ward, and claiming the equities in the property in question after the demands of Ward had been satisfied. In their cross -petition they ask to have the American Exchange Bank made a party, but procured no order of the court making it a party. The American Exchange Bank however was summoned by publication, but made default. The president of the American Exchange Bank appeared as a witness on the trial of the cause, as did also the attorneys for said bank, without making a showing or claiming that any interest of the bank was involved in the suit; and later upon appeal to this court waived service of case made, and later still, after a copy o£ case made had been served upon it, waived notice of the time and place of settling the case made, and has failed to appear to any of the proceedings had in this court. The court upon examination of the record is unable to determine that the presence of the bank is necessary to a complete determination of the issues in this case, or that it has any interest affected by the judgment of the court below, or that may be affected by the affirmation, reversal or modification of the judgment, and is therefore of the opinion that the American Exchange Bank is not a necessary party to this proceeding. The seventh ground of the motion is that no exceptions were taken or saved to the rendition of the judgment in the court below. The allegations of the motion for a new trial filed in due time are sufficient in this case to bring before the court the questions of error contended for, and which if *153 found sufficient will justify this court in making such order with reference to such final judgment as may be necessary to correct the same. We find however upon examination of the record that the final judgment at the time of its rendition was objected to by the defendant Southern Pine Lumber Co., T. L. L. Temple and Chinn and Chinn, plaintiffs in error. The 8th and 10th grounds of objection are in substance that the judgment in the court below having been rendered on the 16th day of March, 1903, and the motion for a new trial determined April 4, 1903, at which time upon overruling said motion sixty days’ time was allowed by the court in which to make and serve a case for the supreme court, that sixty clays’ time began to run from the date or rendition of the judgment, and a second extension of time June 1, 1903, was out of time, because more than sixty days from the date of judgment. The subject matter of this objection was partially considered in the determination of the fourth ground of the motion, supra, -where we determined that upon the filing of a motion for a new trial within three days of the date of the rendition of judgment, the case was thereafter pending in the lower court, and further proceedings stayed until the motion for new trial was heard and determined. The record show's that the motion for a new trial was entered March 17, 1903, the next day after judgment, and was determined April 4th following, at which time 60 days was allowed in which to make and serve a case made. This 60 days did not relate back to or commence to run on the date of the rendition of the judgment, but did commence to run April 5th, under the rule of the statute excluding the first day in computation of time. The error then complained of was the overruling the motion for a new trial, and exceptions *154 being taken, there was preserved thereby any error that may be found to have been made in overruling such motion, and in this manner the entire case is brought to this court for review upon all questions of error presented in the motion for a new trial; and if upon consideration it is found that the motion for a new trial is erroneously overruled, because of error of record properly presented by such motion, the judgment of the court below, which was stajred by the motion, will be modified accordingly. It is not error, therefore, to allow sixty days’ time from the date of overruling the motion for new trial in which to make and serve a case made, which may be extended from time to time for good cause by the trial court, if each extension is allowed prior to the expiration of the last preceding one. The ninth and last ground for consideration is upon the ground that the case made does not contain all of the evidence which was before the lower court, and there considered upou the trial. Counsel say: “All of the records of the lower court in case No. 1524 was as a matter of fact produced to the lower court and- examined and read by it, but the stenographer did not get the offer in the record.” This is an assumption by counsel, as the record shows that all the evidence is in the record, and if this fact of record is not correct, it should have been corrected by counsel for defendant in error, when the case made was settled and signed. Such a question cannot be raised for the first time in this court by an allegation of this kind, and. will never be considered unless the court can determine from the record that evidence before the lower court has not been preserved in the record and brought to this court. *155 Plaving considered each of the grounds of the motion of the defendants in error to dismiss the proceedings in error, and being unable to concur in each or any of the grounds of said motion, the same is hereby overruled and denied. From the statement of facts in this case showing the issues as framed by the pleadings, it will be seen that the plaintiff sues to foreclose a trust deed, making numerous par-tiés defendants who are charged with claiming some interest in the property, but whose rights are inferior to the plaintiff’s right under his trust deed sought to be foreclosed. The plaintiffs in error answering the petition allege that their title is not inferior, that they are the owners of the property, holding under a title derived by purchase at a sheriff’s sale of the same, pursuant to a judgment ordering and directing the sale of the same in a case No. 1524 in the district court of Logan count}'', Oklahoma, being the case of the American Exchange Bank of St. Louis v. T. L. L. Temple et al., defendants; that in said sale all of the right, title and interest of G. M. D. and D. J. Grigsby was foreclosed and disposed of, they at the time being the owners thereof. G. M. D. and D. J. Grigsby, defendants, answer plaintiff’s petition admitting their indebtedness to plaintiff Ward, and the existence and validity of the trust deed by the plaintiff sought to be foreclosed, and aver that they are the owners of the equity in the property covered by the trust deed sought to be foreclosed, after their debt to the plaintiff has been satisfied. By way of answer and cross petition to the allegations of the answer of T. L. L. Temple, et al., they say that no interest, right or title in the property was by him or his co-' *156 defendants acquired under and by virtue of the sheriff’s sale had pursuant to judgment in cause No. 1524 aforesaid; that said judgment and all proceedings thereunder in cause No. 1524 were void; that said judgment was entered bjr the court without jurisdiction of the parties. From the foregoing brief statement of the issue it is apparent that if the plaintiffs in error acquired no title to the property by the proceedings had in case No. 1524, Logan County, O. T. that being their only source of title, the judgment of the court below foreclosing the trust deed sued upon, is correct. Upon the trial of the cause the trial court, after hearing the evidence, found the judgment and proceedings in cause 1524 to be void for want of jurisdiction in the court of the subject-matter, or of the parties and entered judgment vacating and setting the same aside, and all proceedings had thereunder, and quieting the title to the property involved herein in G. M. T). and D. J. Grigsby, which was by the further decree of the court ordered sold to satisfy the indebtedness of said Grigsbys to the defendant in error, Ward, in the sum. of $5797.00. It is urged by the plaintiff in error that this finding and judgment were erroneous for want of authority to hear and determine in this action the question of the validity of the judgment in 1524 and proceedings thereunder. It will be observed that the plaintiff in error and G. M. D. and D. J. Grigsby were brought into court in this case for the purpose of foreclosing their title to the property in question. The Grigsbys were charged as being debtors to Ward, which indebtedness was secured by the trust deed sought to be foreclosed. The plaintiffs in error answering claimed that *157 the indebtedness to the plaintiff was a pretense without foundation in fact, that it had once existed, but had been paid in full, which payment had liquidated any right of action to foreclose the trust deed, and that thereafter by reason of the judgment in 1524 and sale of the property pursuant thereto, they, the plaintiffs in error, were the owners in fee of the property. This issue presented by the plaintiffs in error the Grigsbys assailed in their cross petition, charging that the plaintiff in error acquired no title under and by virtue of the judgment and proceedings in case No. 1524, it being void as we have heretofore stated for want of jurisdiction of the parties to it, both plaintiff and defendant, and ask to have such judgment vacated and held for naught. This we hold was not a collateral attack, and cannot be held to be such. It was a direct attack, and intended as such upon the validity of that judgment, and might be made in this action under the circumstances of this case. A multiplicity of suits is discouraged by law, and where, as in this' case, the rights of the parties depend upon the validity or invalidity of some other judgment of the court, which is charged to be void for want.of jurisdiction of the subject matter or the parties, and the necessary parties are before the court to enable it to determine the validity or invalidity of such other judgment for such cause, such determination may be had where it is necessary to a conclusion of the rights of the parties to the litigation. In this case the plaintiff in error brought forward the judgment and proceedings thereunder in 1524 as the basis of their right to resist the foreclosure of the trust deed executed by the defendants Grigsby, who in turn say that such judgment was void for want of jurisdiction of both the parties *158 and the subject matter, and set forth the reason why their allegation is true. The court heard the evidence, and found the issues thus framed iii favor of the allegation of want of jurisdiction in the court rendering judgment in case No. 1524, and entered its decree holding such judgment void. In this we see no error, nor any legal ground of complaint on the part of the plaintiff in error. It would be otherwise if it had been alleged that the judgment was voidable merely, for in such case the court would have been called upon to act in an appellate capacity, and this we understand to have been the decision of the supreme court of the United States in Elliott v. Pearsall, 1st. Peters, 26 U. S. 240, where the court says: “Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgment and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered in law, as trespassers. This distinction runs through all the eases on the subject; and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every court, when the proceedings of the former are relied on and brought before the latter, by the party claiming the benefit of such proceedings.” This determination was reviewed and confirmed by the supreme court in 44 U. S., 750. And in 49 U. S., 541, the court say: “The principle that a record cannot be impeached by pleadings is not applicable where there is a want of jurisdic *159 tion. The want of it makes a record utterly void and unavailable for any purpose. The want of jurisdiction is a matter that may always be set up against a judgment when it is to be enforced, or when any benefit is claimed under it." . Here a benefit was claimed by the defendants Temple, et al., under the judgment in case No. 1524, which was disputed by the defendants and cross petitioners, the Grigsbys, and it thus becomes apparent that under the law as above expressed by the supreme court of the United States, the judgment and proceedings in case No. 1524 were before the trial court in such a way as to authorize that court to pass upon their validity. This the trial court did, and determined the judgment and all proceedings thereunder to be utterly void for want of jurisdiction over the parties plaintiff or defendant, or of the subject matter of the action. This judgment íd No. 1524 being thus open to the court’s inspection in this case, the first inquiry of the court was necessarily directed to the proceedings by which it was claimed that court had obtained jurisdiction over the parties litigant and the subject of the action. To a complete understanding of case No. 1524 let it be remembered that the American Exchange Bank of St. Louis had brought suit in Dallas, Texas, against the Union Mills Lumber Co., a partnership composed of the Grigsbys and Temple, and the Southern Pine Lumber Co., a partnership composed of T. L. L. Temple and Ben Whitaker, and T. L. L. Temple personally, in which action the said bank plaintiff recovered judgment against the defendants named, and upon which judgment execution was issued, and which execution was satisfied in the hands of the sheriff by payment thereof *160 by T. L. L. Temple. Thereafter suit No. 1524 was brought in the district court of Logan county, Oklahoma, in the name of the American Exchange Bank upon the Dallas judgment, and against the defendants, T. L. L. Temple and Ben Whitaker, partners of the Southern Pine Lumber Co., the Southern Pine Lumber Co., a corporation of Arkansas, D. J. Grigsby, G. M. D. Grigsby, and T. L. L. Temple, partners, under the firm name of Union Lumber Mills Co., to recover in that court upon the Dallas judgment as a first cause of action; and a second cause of action therein stated upon an account alleged to have been owing by the Union Lumber Mills Co. to the Southern Pine Lumber Co., and by said company assigned to the Southern Pine Lumber Company, a corporation, and by said corporation assigned to the plaintiff. An atachment was issued in said cause out of the district court of Logan county, O. T., and levied upon the property now in question in this suit. Service of summons by publication was had upon the defendants named, and upon default by them judgment was entered for the amount sued for, and the attached property ordered sold, plaintiffs in error becoming the owners under and by virtue of a sale had pursuant to such order. The title of plaintiffs in error to the property in controversy by reason of such judgment and sale, is, we think, the bone of contention in this suit. The trial court held the judgment and all proceedings thereunder void, and this holding must be affirmed. While it is true that the American Exchange Bank of St. Louis, plaintiff in cause No. 1524, was not made a party to this case, it is also' true, we think, that said bank never *161 was a party to the proceedings had in said cause 3SFo. 1524. Its president was a witness in this case, and testified that he did not know anything about the case, No. 1524, that McCormick & Spence, attorneys at Dallas, Texas, were the bank’s attorneys and the only people who had authority to bring that action in that behalf; that he as president of the bank did not know of the suit until he was written to about it by Mr. Prendergast, attorney for the defendants in error; that he knew nothing about, the $294.00 account sued on in that action, and that he would have known of it if the same had ever been transferred to the bank. And the record further shows that McCormick & Spence knew nothing of the bringing of the action, and did not authorize it to be brought. By the testimony of the plaintiff in error T. L. L. Temple, it 'appears that he caused the action No.1524 to be brought without consultation with the American Exchange Bank: The record further shows that the Dallas judgment was collected upon execution in February, 1892, from T. L. L. Temple, and the amount so collected was by the sheriff paid to McCormick & Spence, attorneys for the American Exchange Bank. This testimony is undisputed upon the record and justifies the finding of the court below, that said action No. 1524 was never brought or authorized by the American Exchange Bank, the plaintiff named therein. • It had in fact no cause of action. The Dallas, Texas, judgment having been paid -on execution, the same was thereby liquidated, and could not rightfully be made the basis of another action, by the bank or any one in its behalf; and( it could not become the owner of the $294 account sued on except by *162 some agreement or undertaking whereby it became entitled to maintain an action thereon. It therefore appears from the record that the district court of Logan county did not at the time of the rendition of the judgment in said cause have jurisdiction of the plaintiff in that action, of the subject matter, or to render any judgment in that case in the plaintiff’s name. Jurisdiction of the parties and of the subject matter is •essential to the rendition of a valid judgment, and without it a judgment is void, and no right can be acquired thereunder. It is equally as essential that the court should have jurisdiction of the plaintiff as of the defendant. Such jurisdiction is ordinarily acquired by the plaintiff coming voluntarily into court and by appropriate pleadings invoking the exercise of the court’s jurisdiction, thereby submitting himself and his cause of action to the ultimate determination of the court. Tf it is shown that this is not done or authorized to be done, the court acquires no jurisdiction of the subject-matter, and if as in this case the action is instigated and directed by a person not authorized, it is immaterial what the motive may have been, it is fraud upon the court as well as the parties, and all transactions thereunder are void ab initio. Fraud of such character vitiates and avoids all rights attempted to be acquired thereby; and if a record, void for such reason, is brought forward and relied upon by a party to pending litigation, and its validity is challenged as in this case, and a determination of its validity or invalidity is necessary to complete determination of the pending cause, such validity or invalidity may be determined. It is imrna- *163 terial whether or not the parties plaintiff to the challenged record are brought in; he is sufficiently represented by the party claiming under him who pleads or relies upon the right acquired thereunder and thereby, for in such case there was no party plaintiff, — the whole proceedings were fictitious and void, and when clearly and satisfactorily shown to be so, should be so declared. The trial court in considering the validity of the judgment in No. 1524 found the services by publication void for want of sufficient allegations in the affidavit therefor; and the order of attachment also void for want of a sufficient affidavit to warrant the issuance of the same. We find it unnecessary to determine these questions; having already determined that the judgment in said cause No. 1524 and all proceedings thereunder were void for want of jurisdiction in the court rendering the same, such conclusions determined the rights of the plaintiff in error in this case adverse^ to them. With the rights of the plaintiff in error eliminated from this case, for the reason herein-before stated, the cause stands as an action by the defendant in error, Ward, for foreclosure of a trust deed against the defendants Grigsby. The lower court found the legal title to the property in question to be in the defendants G. M. D. and D. J. Grigsby, who executed the trust deed sued upon, and quieted the title in them subject to the rights of the plaintiff under such trust deed, and entered judgment foreclosing the same, which judgment we think was correct, and must be affirmed. Judgment affirmed. Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.