DOUGLAS MILLING AND POWER COMPANY v. RICKEY
Douglas Milling & Power Co. v. Rickey
Ducker, C. J.: I concur.
DOUGLAS MILLING AND POWER COMPANY v. RICKEY
No. 2578
DOUGLAS MILLING AND POWER COMPANY v. RICKEY
August 6, 1923.
217 Pac. 590.
1. Judgment — Error in Trial Judge's Rulings on Evidence Xot Ground for Enjoining Collection of Judgment.
Where, in passing on competency of evidence, the court did not transcend its jurisdiction, error in the ruling is not ground for enjoining collection of the judgment.
2.. Appeal and Error — Refusing to Call Outside Judge Held without Prejudice.
Where complaint in suit to enjoin collection of a judgment did not state any ground for relief, any error ill the trial court’s refusal to call in an outside judge to preside at hearing of demurrer was without prejudice.
Appeal from First Judicial District Court, Douglas County; Frank P. Lang an, Judge.
Suit by the Douglas Milling and Power Company against Dora Dean Rickey and others. Judgment for defendants, and plaintiff appeals.
Affirmed. Petition for rehearing- denied.
Geo. A. Montrose and A. Grant Miller, for Appellant:
A void judgment is open to either direct or collateral attack. It need not first be set aside; whenever it is brought up against party, it may be impeached in any action, anywhere, at any time. Black, Judgments, secs. 170, 218, 278, 895; Jefferson v. Gallagher, 150 Pac. 1071; Rev. Laws, 5187.
Proceedings to reverse, vacate, set aside, declare void, sustain, modify, or perpetually enjoin a judgment1 are direct, and not collateral, proceedings. Black, sec. 252; Ford v. Glendenin, 109 N. E. 124.
Though there is no specific statute on the point, the practice throughout entire state is to call in another judge when fair showing is made therefor. The affidavits submitted made such showing, and were not contradicted.
Platt & Sanford, for Respondents:
Decisions of appellate court are conclusive as to facts and law (1 Freeman on Judgments, 440), and cannot be set aside for mistake or inadvertence of attorneys or parties. Daly v. Pennie, 25 Pac. 67. Equity will not enjoin judgment on account of errors during trial or errors of law (Hilliard on Injunctions, 155-156; Sherman v. Clark, 4 Nev. 138), or where rights are lost through mistake or incapacity of attorneys or action of parties. Royce v. Hampton, 16 Nev. 30; 2 Story, Eq. Jur. 897; Pomeroy, Eq. Jur. 2060. Equity has no power to relieve against judgment affirmed solely on ground that no assignment of errors is filed. Miller v. Bernecker, 46 Mo. 194.
Fraud is not alleged against any one in securing verdict. Equity will not relieve against fraxxd except where it is extrinsic or collateral. U. S. v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 25 Pac. 970, 27 Pac. 537.
The affidavit in support of motion for calling in another judge did not contain any statutory ground therefor.
This court has already affirmed judgment and held that it is supported by pleadings. It was an action for damages for negligence, aixd damages were awarded. Nothing else was adjudicated.
By the Court,
Coleman, J.:
About three years ago the respondents brought a suit in the district court of Douglas County against the appellant to recover damages for alleged negligence resulting in the death of one Charles F. Rickey. The complaint in that action set forth in detail the alleged acts of negligence on the part of the defendant in the action. Upon the filing of the complaint in that suit summons was issued, and, together with a copy of the complaint, was served upon the defendant. In due time the defendant appeared and filed its answer, denying the allegations of negligence, and affirmatively pleaded contributory negligence. A reply was filed, denying the allegations of contributory negligence. The complaint was attacked in no way. Upon the issues thus made the case came on for trial before a juiy. A general verdict was returned, and special findings were made in favor of the plaintiffs in the action. A motion for a new trial having been overruled, judgment was entered upon the verdict. The defendant took an appeal from the order denying the motion for a new trial and the judgment. In due time the respondent in that case, being the plaintiff in the trial court, made a motion to dismiss the appeal from the order denying the motion for a new trial, for the reason that the evidence in the case had not been brought into the record. by a duly settled bill of exceptions. The matter was submitted to this court upon briefs and oral argument; thereafter the motion to dismiss was sustained, and, no error appearing upon the j udgment roll, the j udgment appealed from was affirmed. Rickey v. Douglas M. & P. Co., 45 Nev. 341, 204 Pac. 504.
The present suit is one in equity to enjoin the plaintiffs in the original action from collecting the judgment in their favor. Upon the filing of the complaint in this suit a temporary injunction issued upon the ex parte application of the plaintiff. The defendants appeared and filed a general demurrer to the complaint and also made a motion to dissolve the injunction, upon the ground, among others, that the complaint alleges no facts entitling the plaintiff to injunctive relief. Upon the hearing of such demurrer and motion the court vacated the order theretofore issued and sustained the demurrer. Thereafter judgment was entered in favor of the defendants. The case is now before us on an appeal taken from such judgment.
While there are numerous errors assigned, they may be disposed of under two classifications: (1) That the judgment in the original action was in excess of the jurisdiction of the court, hence null and void. (2) That the trial court erred in refusing to call in an outside judge to preside at the hearing of the demurrer'and motion.
Counsel for appellant have filed an opening brief of thirty-six pages, wherein they have called our attention to over sixty authorities which they claim are in point. The complaint in the case is voluminous, but it consists chiefly of the pleadings, affidavits, and documentary and oral evidence introduced in the original case. While counsel for appellant in the oral argument made some allusion to fraud, there is not in the complaint or the, brief a suggestion of fraud. The allegations of the complaint in the instant proceeding are directed solely to the rulings of the court in the rejection and reception of evidence during the trial of the damage suit. One of the allegations of the complaint goes to the ruling of the court in admitting in evidence a franchise from the board of county commissioners of Douglas County to the defendant company, authorizing it to construct and maintain its power lines. It is the contention of counsel for the appellant that there is no allegation in the complaint alleging any franchise, or the violation of any franchise, and that the proof of such franchise did not tend to prove any issue in the case.
To sustain the contention of counsel our attention is directed to section 242, Black on Judgments (2d ed.) where it is said:
"Besides jurisdiction of the person of the defendant and of the general subject-matter of the action, it is necessary to the validity of a judgment that the court should have had jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant. In other words, a judgment which passes upon matters entirely outside the issue raised in the record is so far invalid. "
Numerous authorities are cited in support of the rule thus stated. The rule invoked is elementary, and counsel might have found that it had been recognized in this jurisdiction. Estate of Foley, 24 Nev. 197, 51 Pac. 836, 52 Pac. 649. We do not believe this rule is questioned anywhere. The rule invoked being thus recognized, let us inquire wherein its application to the facts pleaded in the complaint would justify the contention that the trial court in the original action, by receiving the evidence in question, permitted the bringing into the case for determination an issue not presented by the pleadings. What question was thus brought into the case, not involved in the issues as framed by the pleadings? Under the pleadings but two issues were presented, namely, the negligence of the defendant and the contributory negligence of the deceased.
The court was confined to the determination of these two issues, and competent evidence was admissible in proving or disproving both of them. In passing upon the competency of the evidence tendered, the court did not transcend the limits of its jurisdiction, and, if it erred, it erred only in the exercisé of jurisdiction, and no advantage could be taken thereof except on appeal. Daly v. Lahontan M. Co., 39 Nev. 14-29, 151 Pac. 514, 158 Pac. 285-287. It was aptly said in Tallman v. McCarty, 11 Was. 401:
"No order which a court is empowered under any circumstances, in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity merely because it was made improvidently, or in a manner not warranted by law, or in the previous state of the case. The only question in such a case is: Had the court or tribunal the power, under any circumstances, to make the order or perform the act? If this be answered in the affirmative, then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose."
If any other doctrine than that which we have stated, which is as old as jurisprudence itself, were to control, there would be ho finality to litigation. Every other point presented, attacking the jurisdiction of the court in the damage suit, goes to some ruling in the original action, and is controlled' by the rule which we have stated; hence there is no necessity to state them seriatim and apply the principle enunciated. The query naturally suggests itself whether these proceedings would lie, even were there merit in the propositions urged upon our consideration, since the appellant had its remedy at law by appeal from the judgment from which it is now seeking relief. 15 R. C. L. 738, et seq.
It is suggested that the lower court erred in refusing to call in an outside judge to hear the motion to dissolve the injunction and the demurrer. We think no showing was made warranting the calling in of an outside judge, but, if error was committed, it was without prejudice, as the motion to dissolve and the demurrer went only to the sufficiency of the complaint, and it clearly appears that it fails to state any ground for relief.
The judgment is affirmed.
Ducker, C. J.: I concur.