Askren v. Squire

Per Curiam. 1. The defendant’s „ counsel contend that the refusal of the court to sustain the motion was an abuse of discretion which this court should review; that the defects appearing on the face of the complaint leave it o± en to the objection that it does not state facts sufficient to constitute a cause of suit, and that t ¡e failure to answer was not a waiver thereof; while counsel for the plaintiff insist that the court had jurisdiction of the person and subject matter of the suit, and hence the decree is not void, and the defendant having failed to answer the complaint, her appeal should be dismissed. The court may, in its discretion, within one year, after notice thereof, relieve a party from a decree taken against him through his excusable neglect: Hill’s Code, § 102. The discretion with which the court is clothed by this section when exercised will not be reviewed except for a manifest abuse thereof. The affidavit submitted in support of the motion 231 does not, in our judgment, show such excusable neglect on the part of the defendant as would warrant us in saying there had been such abuse. 2. The complaint, when considered in connection with the lien notices, may have failed to state a cause of suit as to all the liens sought to be enforced against the property, but the defendant having failed to answer, cannot appeal from the decree rendered therein unless it is void: Hill’s Code, § 536. The statute confers upon the circuit court jurisdiction and authorizes it to foreclose such liens, (Session Laws, 1891, p. 77,) and, having obtained jurisdiction of the defendant by the personal service of the summons, in rendering the decree it solemnly determined that it had jurisdiction, and, this being so, while its decree may have been voidable, it is not void. Mr. Van Fleet, in his work on Collateral Attack, § 61, in speaking of the sufficiency of a complaint to support a judgment, says: “ That when the allegations are sufficient to inform the defendant what relief the plaintiff demands — the court having power to grant it in a proper case— jurisdiction exists, and the defendant must defend himself.” “ If the petition,” says Valentine, J., in Head v. Daniels, 38 Kan. 1, “ sets forth facts sufficient to challenge the attention of the court with regard to its merits, or authorize the court to deliberate with respect thereto, then the judgment subsequently rendered upon it is not void, but at most is only voidable.” The statute provides that a failure to demur or answer does not waive an objection 232 to the jurisdiction of the court or that the complaint does not state facts sufficient to constitute a cause of action: Hill’s Code, § 71. It also provides that any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom: Code § 536. These sections when construed in pari materia mean that a party failing to demur or answer may appeal from a void judgment rendered against him, but such party cannot appeal from a judgment that is merely voidable: Smith v. Ellendale Mill Company, 4 Or. 70; Trullenger v. Todd, 5 Or. 36. 3. When the trial court has jurisdiction of the person and subject matter of a suit or action it is incumbent upon the defendant to demur or answer the complaint, for if he could neglect this duty and appeal from a voidable judgment or decree, because of a defective statement in the complaint of a cause of action, the issues would rarely be settled except in the appellate tribunal. The decree being voidable only, and the defendant having failed to answer, it follows that the appeal must be dismised, and it is so ordered. Dismissed.