Foreman v. Carter, 9 Kan. 674 (Kan.)

'The opinion of the court was delivered by

Brewer, J.:

On the 18th of July, 1862, Foreman brought .•suit in the district court of Atchison county to foreclose a mortgage given by Scott. He alleged that the other defend■ants claimed some interest, and asked that, their interest be foreclosed. An affidavit for publication was filed, publication had, a decree rendered, and sale made. Morgan Osborn became the purchaser at the sale. The decree was rendered •on the 27th of September 1862, and the sale made on the 6th of March 1863. On the 17th of February 1871 Joseph J. Carter, one of the defendants, filed his motion to set aside this decree, as void. The district court sustained the motion, and from that decision this proceeding in review is brought. Was this motion made in time? No matter what the merits of the motion, if the time within which it could be made was passed, he had no standing in court. By § 83 of the civil •code of 1862 (Coinp. Laws, p. 137,) a party against whom a

judgment has been rendered after service by publication was allowed three years in which to have it opened; and by §§ 546r and 553 of the same code a party also had three years in which to vacate or modify a judgment on account of irregularities in obtaining it. Sec. 575 of the code of 1868 (the section corresponding to § 553 of the code of 1862,) amends it by adding this clause: “A void judgment may be vacated at anytime, on motion of a party, or any person affected thereby.”' It is claimed that the sole power the court had is derived from these statutory provisions; and as by the code of 1862 the-time within which the power of the court could be invoked was limited to three years, and that time had elapsed after the entry of this decree and before the adoption of the code-of 1868, that the decree had become a finality, beyond any power of interference. Conceding these provisions of the code to be in the nature of statutes of .limitation, and. the same rules apply. If a judgment is simply voidable, that is, may be avoided on account of certain irregularities in the manner of obtaining it, it starts the statute to running; and a party to avail himself of these irregularities must move within the time limited. But that which is absolutely void, never starts. a statute of limitations to running. A tax deed, void on its-face, is never saved by limitation laws. Shoat v. Walker, 6 Kas., 65. No more is a judgment absolutely void. If upon .the face of the record it appears that the court had no jurisdiction of the subject-matter, or of the person, length of years will not give the jurisdiction, or make that good which was void. The addition of the clause of 1868 to the section, gives no additional power to the court. It simply enunciates a power it always possessed. In Dederick’s Adm’r v. Richley, 19 Wend., 112, Bronson, J., says: “The judgment was signed on the 11th of November 1835; and no judgment in any court of record can be set aside for irregularity on motion unless the motion is made within one year after judgment; (2 N. Y. R. S., 359, § 2.) This provision relates to a mere technical irregularity, where the cause has been heard and decided on the merits. It cannot apply to a judgment en

tered without authority against a party not before the court.” To the same effect are Smith v. Rollins, 25 Mo., 408; Harris v. Hardeman, 14 How., 334; Mills v. Dickson, 6 Rich., 487; Hallett v. Righters, 13 How. Pr. Rep., 43; Manuf. and Mech. Bank v. Boyd, 3 Denio, 257; and also the unreported case of Leas and Harsh v. Ortman, Adm’r, &c., in this court on. error from Leavenworth county. If therefore the judgment was void, Carter was in time with his motion, and the decision of the district court should be affirmed.

Was the judgment void so far as Carter is concerned? It is shown by the testimony offered on the motion that at the time of the rendition of the judgment Carter was a soldier in the confederate army, and within the confederate lines. It is claimed that as war subsisted between the two sections of our country, and as by the president’s proclamation of August 16th, 1861, based upon the act of congress of July 13th, 1861, all intercourse and communication between them was prohibited, no judicial proceedings could be had in the courts of the one against parties within the limits of the other. The notice of publication required the absent defendant to appear and defend. The supreme power of the nation prohibited him from appearing. Hence this prohibition suspended the power of the court to proceed, until the defendant was able to respond to the notice, and. appear. The same conditions also suspend the running of the statute of limitations. “Contra non valentem agere nulla eurrit prceseriptio.” There is some conflict of authority on these points. That the war suspended the running of the statute of limitations, is held in Brown ¶. Hiatt, 1 Dillon Ct. Ct., 372; Hanzer v. Abbott, 6 Wallace, 532. That it does not, is decided in Smith v. Stewart, 21 La. An., 67; Taylor v. Hill, 21 La. An., 626. That judicial proceedings are suspended, and an attempted foreclosure of an equity of redemption, or seizure and sale, under attachment, is void, is decided in Dean v. Nelson, 10 Wallace, 158. Contra, in Dorsey v. Dorsey, 30 Ind., 522; Mixer v. Sibley, 53 Ill., 61. It is unnecessary for us however to examine these conflicting authorities; for, conceding the doctrine laid down by the

supreme court of the United States, as to the effect of the war, to be correct, we do not think the facts of this case will justify the conclusion sought. The war began in April 1861. At . that time Carter was a resident of Kansas, and so continued until some time in July 1861, when he left, for aught that appears, voluntarily. The next that we hear of him is in August 1862, when he joins a company of confederate soldiers in Tennessee. Where he was from July 1861, to August 1862, we are nowhere told, though Carter is himself the main • witness in his own behalf. We cannot assume in his favor that he was driven out of Kansas, or that he went directly to some state then in rebellion, or that he was driven out of the Union, and within the confederate, lines, or that he was ■ drafted into service. If any of these facts existed they should ■ have been shown, by one seeking to avoid a judgment against . him, and to disturb innocent parties in the possession of property they had paid for in good faith on the strength of such judgment. It was well said by Bradley, J., in delivering the opinion of the court in Ludlow v. Ramsey, 11 Wall., 581, that “if a party voluntarily leave his country or his residence for the purpose of engaging in hostilities against the former, he cannot be permitted to complain of legal proceedings ■ regularly prosecuted against him as an absentee on the ground of his inability to return or to hold communication with the place where, the proceedings are conducted. That would be carrying the privilege of contra non valentem to an unreasonable extent.” With that doctrine, thus announced by the .supreme court of the United States, we cordially concur. So . far as the record before us shows, Carter voluntarily left his ■ place of residence within the Union lines, after the war had commenced, voluntarily entered the confederate lines, and voluntarily joined their forces. If force was used to compel any of these steps it should have been disclosed. O’Neal v. Boone, 53 Ill., 35.

■ The other objections to this judgment are, that the affidavits .for publication, and of publication, are not properly aufchen- ' ticated. The first is authenticated by the signature of the

clerk of the district court, but without his seal. The second is authenticated by the signature and seal of Alfred G. Otis, a notary public, but one of the attorneys of the plaintiff in this action. On the hearing of the motion to vacate and set .aside this judgment plaintiff produced Abram Weaver, the clerk of the district court both at the time the affidavit for publication was made, and ever since, and offered to prove by him that as such clerk he had had the custody of the papers and the seal of said court, and that it was the universal practice in said court not to attach the seal to affidavits to papers filed in that court, and asked that he have leave to amend his authentication by attaching the seal. He also produced A. P. Cochran, whose name is signed to the affidavit of publication, and offered and asked to have him resworn to that affidavit, and to prove by him that publication was made as stated in that affidavit. Both of these applications were refused, and exceptions taken. Had the district court the power to permit these amendments? and if it had, ought it to have done so? Sec. 139 of the civil code provides that “The court may, before or after judgment, in furtherance of justice, -and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment docs not change substantially the claim or defense; and when any proceeding fails to conform in any respect to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.” It has been said that this language literally construed gives unlimited power to the courts. While not obnoxious to this sweeping charge, it cannot be denied that it grants a large discretion. That its language covers a case like the present, is too plain for controversy. If the proceedings for publication fail to conform to the provisions of the code the court may permit them to be made conformable ■ thereto by amendment. One limitation on the exercise of

this power is, that it be “in furtherance of justice.” Of this,, in reference to this case, more hereafter. It is enough to-state this here, as applicable generally: That if ever a party' has obtained through legal proceedings an unjust advantage,, and in those proceedings has made a mistake, be it ever so-trivial, the law will qot tolerate an amendment to secure him in his advantage. To such an one the law is a Procrustean bed, and to its exact requirements every proceeding must, at his peril, conform. But where only just claims are sought to be enforced, the law looks tolerantly on mistakes, and seeks-to uphold whatever is honestly attempted to be done. Again, it is objected that “The court could not permit amendments-to be made after judgment by default, so as to confer jurisdiction.” Doubtless this is trae. You cannot amend a party into court, after judgment by default, without summons, service or notice. You cannot amend by introducing summons and service. If in this case there had been no publication, there could be no amendment; for without publication an absent defendant cannot be brought into court. But here the-objection is, not that something was omitted to be done which, was necessary to be done to bring defendant into court, but that the “proof” of what was done is defective. The affidavit for publication was signed and sworn to before the proper officer, and now remains on the files of the court, attested by his signature. Publication was made, and a copy of the publication is on file. An affidavit and publication was signed and sworn to> before an officer authorized generally to administer oaths, attested by his signature and seal, and is now on file. Publication of notice is equivalent to service of summons. When a summons is served the defendant is in court. So, when, publication is completed. Mason v. Messenger, 17 Iowa, 261-The affidavit of publication is like the return on the summons, proof of what has in fact been done; and like such return, it does not of itself operate to bring the defendant into court—at least it did not, under the code of 1862, (though see code of 1868, p. 644, § 75, last clause.) In the-one case jurisdiction is obtained by the service; in the other,

by tbe publication. So that the amendments sought are not to confer jurisdiction, but to perfect the proof of a jurisdiction which had been really acquired.' We think therefore the court had power to order these amendments made. Ought-they to have been made? Would it have been in furtherance of justice? That the debt was a just one, that it was secured by a mortgage on the property sold, that the judgment is for' no more than it ought to have been, that defendant Carter left the state without making any provision for the payment-of this debt, that he during the ten years of his absence made-no attempt to pay off the indebtedness, that the property was-fairly sold at a then reasonable price, that due notice of the-time and place of sale was given, are matters against which, the record makes no imputation. In short, there is nothing to qualify the assertion that the owner of the note and mortgage sought at a reasonable time, and in a reasonable way, to secure satisfaction of his indebtedness out of the property charged as security. On the other hand, more than ten years ago the defendant left the state without paying his-debts, and for as many years neglected the property, and nowr when values may have largely changed through the activity and intelligence of the people of Atchison, returns and asks to recover the land, dispossess the purchaser, and avoid the-proceedings, on account of some technical defect. In such a-case we think simple justice requires that these amendments-be made. It is further objected that the question of amendments is one of discretion, and will not therefore be reviewed, in this court unless it appear that that discretion has been, abused. This is unquestionably so. Yet when the question arises on a record we are generally placed in a better position to weigh that discretion than when it is exercised during the-trial of ,a cause. It seems to us, with the record all before-us, that these amendments should have been made. See, as-to the power to amend, and the circumstances under which, amendments should be made, the following among many cases: Bilansky v. The State, 3 Minn., 427; Wiggin v. Veasey, 43 N. H., 313; State v. Dowd, 43 N. H., 454; Frink v. Frink,

43 N. H., 508; Avery v. Bowman, 39 N. H., 393; May v. Ferill, 22 Texas, 340; Keen v. Briggs, 46 Maine, 467; Palmer v. Thayer, 28 Conn., 237; Jackson v. Ohio & M. Rld., 15 Ind., 192; Kitchen v. Reinskey, 42 Mo., 427; Dunn v. Rodgers, 43 Ill., 260; Clayton v. The State, 24 Ark., 16; Talcott v. Rosenburg, 8 Abbott, N. S., 287.

The order of the district court will therefore be reversed .■and the case remanded with instructions to permit these .amendments to be made, and when made to overrule the .motion to set aside the judgment.

All the Justices concurring.