McCormick v. Hubbell

Wade, C. J. This is an action upon an undertaking on appeal. It appears from the transcript that on the 28th day of September, 1878, judgment was rendered by the probate court of Custer county in favor of Thomas H. Burton against Elizabeth Young for the sum of $369 and costs of suit, and on the 28th day of October, 1878, Young appealed to the district court of Custer county. On this appeal the defendants Kelly and Hubbell entered into an undertaking whereby they undertook and promised to pay any judgment that might be rendered against the defendant Young in the district court. On the 27th day of May, 1879, the cause was tried in the district court, and a verdict and judgment thereon rendered against Young for the sum of $302 and costs. The defendant did not file a motion for a new trial or appeal from this judgment. Thereafter the plaintiff Burton, in that action, sold and assigned all his interest in said judgment and undertaking to John McCormick, the — 96 — plaintiff herein, who brings this action on said undertaking. To this action the defendants, the sureties upon the undertaking aforesaid, in their answer, set up several matters in defense, and among them the following: First. That on the 28th day of September, 1878, and thereafter until the 8th day of February, 1879, the county of Custer was an unorganized county in the territory of Montana, and that during said period of time such county had no lawfully authorized or qualified county officers, and that during such period the county of Custer had no probate judge or probate court, and no person authorized and qualified to act as such, and therefore" that the judgment alleged to have been rendered by the probate court •of Custer county is without force or effect and utterly void. Second. That there was not on the 28th of September, 1878, nor thereafter until the 8th day of February, 1879, any district court within and for the county of Custer. Third. That Young and her attorneys induced and procured' these defendants to sign said undertaking by false and fraudulent representations. Fourth. That the judgment in the district court was not entered by the clerk or signed by the judge thereof on the 27th day of May, 1879, but that some time in August of that year the amounts, both of damages and costs, as they now appear in the judgment, were surreptitiously entered therein in a wrongful and unlawful manner, and that the name of the judge signed to said judgment was not signed or authorized by said court. Fifth. That the jurymen who tried the case in the district court were corruptly biased in favor of the plaintiff, in this, that they were creditors of the plaintiff, and that the plaintiff promised such jurymen, if a judgment were rendered in his favor, to pay such jurymen the amount of their claims against him; and sixth. That at the time said judgment was rendered in the district court against the said Elizabeth Young she was a married woman and the — 97 — wife of Richard Kelly, one of these defendants, and that Kelly was not made a party to said action. Thereupon the plaintiff moved to strike out said several matters of defense, which motion was sustained, and this action of the court is assigned as error. 1. In this action the judgment of the probate court cannot be attacked. Sureties upon an appeal bond or undertaking cannot go behind the judgment to set up any matter of defense of their liability which might have been pleaded or shown in the original action. If the probate court was not properly constituted or authorized, or if the judgment was improperly rendered.therein, the defendant in that action might have made that defense in the probate court, or had the same retried on her appeal to the district court.. Having failed to do this, the sureties cannot now make this collateral attack upon the judgment. There is another consideration which renders the question as to whether or not the probate court of Ouster county, at the time of the rendition of the judgment therein, was properly constituted and authorized, an immaterial question. A cause of action reaching the district court from the probate court under section 435 of the code, is tried as a new action. The statute provides that such a case shall be tried in the district court de novo. New pleadings may be filed therein, and the action proceeds in all respects as if it had been commenced in that court. When the transcript and papers are sent from the probate court to the district court, and the parties appear therein without objection, the jurisdiction of the district court at once attaches, and the case is tried anew, and is not in any manner affected or controlled by the trial or judgment in the probate court. The defendant Young appeals. She causes the case to be taken to the district court. When it reaches there, the machinery of that court is set in motion and the action had to be disposed of like any other action. A trial ensues. A verdict is rendered — 98 — against her, followed by a judgment thereon. This judgment, being the result of a trial de novo, is not affected by any defect or infirmity that might pertain or belong to the judgment in the probate court. This judgment in the district court the sureties in the undertaking promised to pay or cause to be paid. They cannot go behind this judgment and set up any matter in defense that might have been pleaded in the original action. A defense that might have been made to that action cannot be pleaded for the first time in an action upon the undertaking. In an action upon an undertaking on appeal from a judgment of the probate court to the district court, where a trial de novo has been had, and a new judgment rendered in the district court, an allegation in the answer of the sureties, that the judgment appealed from is fraudulent and void, is not a defense to such action. Knight v. Waters & Pratt, 18 Iowa, 345. 2. The allegation in the answer, that at the date of the rendition of the judgment in the probate court of Ouster county there was no district court therein, and consequently no court in which an appeal could have been taken, does not constitute a defense to this action. If it were true that no separate district court had been established within and for said county at that time, then the statute of January 4,1812, which was a re-enactment of a former statute on the same subject, whereby the county of Big Horn (since named Custer) was attached to the county of Gallatin for judicial purposes, was then in force. The purpose of this statute was to give to the people of Custer county all the benefits of a district court. It extended the jurisdiction of the Gallatin county district court over that county. The district court of Gallatin county thereby became the district court of Custer county also. It gave to the people of Custer county the same right to appeal their cases from the probate court of their county to the district court, as the people of Gal — 99 — latin county had to appeal from their probate court to their district court. And so, whether the district court of Custer county, at the date of the rendition of the judgment in the probate court, had been established in that county, or whether such district court at that time remained at the county seat of Gallatin county, is immaterial. In either case the defendant in the judgment, at the date of its rendition, might have appealed to the court exercising district court jurisdiction for Custer county. And this is what the defendant did do in giving the proper notice and causing to be executed the undertaking sued on in this action. 3. The third defense, that Young and her attorney falsely represented that the undertaking these defendants were about to sign was conditioned for the payment of the costs only in case judgment was rendered against Young in the district court, is wholly insufficient. The undertaking with all its conditions was before the defendants.' They had it in their hands and an opportunity to examine it. If, by their own neglect or carelessness, they failed to do so, it is their own fault. If they were ignorant of the law on the subject, that does not excuse them. Mere verbal representations of what a written contract contains, when the same is in the hands of the party to be bound, if he signs it, do not affect the liability of such party. i. The fourth and fifth defenses, which relate to the misconduct of the jury in the district court, and to irregularities in the entry and rendition of the judgment, are not available in this collateral attack upon the judgment. Such misconduct or irregularity did not render the judgment void. It was only voidable, and that by the application of the proper remedy. There was a verdict in favor of the plaintiff and against the defendant Young, and a judgment thereon. If the verdict was tainted with fraud; if the jury had been corrupted by the — 100 — plaintiff; or if the judgment was unlawfully and impropeiiy entered, the remedy of the defendant was a motion for a new trial in the district court, where those things, if true, might have been made to appear. From an order granting or refusing such a motion an appeal lies to this court, and only by virtue of such an appeal can such or kindred questions be considered here. 5. The sixth defense, wherein it is alleged that the defendant Young, at the time of the rendition of the judgment against her, was a married woman, is not a good defense for these defendants. Such a judgment is not void. It is erroneous, but the error is cured if the party does not avail herself of her remedy, and at the proper time. In this case, the defendant Young might have made a motion to set aside the judgment because of her coverture, or she might have appealed from the judgment. She failed to do either. Having a statutory remedy which afforded full and complete relief, which she negr lected to avail herself of at the proper time, she could not now, in an equitable proceeding, ask to have the judgment set aside (Vantilberg v. Black, 3 Mont. 459); and if not, the judgment against her must be held good as far as it concerns these defendants. If the judgment could not be set aside in a direct proceeding instituted by the married woman for that purpose, then, evidently, it could not be set aside in a collateral action by these defendants. The judgment is affirmed, with costs.