JUDGMENTS-COLLATERAL ATTACK-INSUFFICIENCY OF THE CAUSE OF ACTION AS A BASIS FOR DENYING JURISDICTION OF A COURT RENDERING A DEFAULT JUDGMENT

In a previous action, A, as assignee of a conditional sales contract, sought to recover the property when the purchase price was not paid. Defendant counterclaimed for damages because of alleged fraud of the assignor in making the sale. On appeal, the Montana Supreme Court held that defendant could not have an affirmative judgment on the counterclaim, but could use his claim as recoupment only. On remand, A\u27s attorney moved for continuance until his client could secure a new attorney. The motion was denied, and on the day set for trial A was not represented. As a consequence, a default judgment was entered for the amount of the counterclaim. Land belonging to A was levied upon and sold to defendant in satisfaction of this judgment. In the present action to quiet title, B, son of A, contended that the affirmative judgment upon the counterclaim was void and that the levy and sale did not pass title to the land. Held, since defendant did not state a cause of action in the first case sufficient for an affirmative judgment, the default judgment is void and subject to collateral attack. Apple v. Edwards, (Mont. 1949) 211 P. (2d) 138