and effect.91 A final judgment of divorce rendered without an interlocutory decree, or within one year from entry of an interlocutory decree, is absolutely void.92 The omission of the date of entry of a decree from the journal of the clerk does not render the decree void, even though the decree does not become absolute until six months after the date of such entry.93 If it be made to appear that fraud has been practiced on the defendant and the court in procuring the decree of divorce, it will be promptly set aside. Where plaintiff is regularly awarded a divorce after service by publication, the court, after judgment entered, has no jurisdiction to set the same aside and allow defendant to defend the suit.95 The California statute gives such a defendant one year after judgment in which to open the case and make defense.95a Actual notice one month before entry of decree will prevent opening of a decree of divorce, although plaintiff knowingly sent the notice to the wrong address.96 Courts of general jurisdiction have this inherent power independent of any statutory provisions.97 § 1531. Judgment in ejectment—Effect.—A judgment in ejectment in no manner vacated, and from which no valid appellate proceeding is prosecuted, remains a conclusive and final judgment directly affecting the estate, and binding upon the parties and all claiming under them. The court should put the successful party into possession.98 § 1532. Judgment in action against an estate. It is erroneous in an action against an estate to enter judgment against the administrator personally, or to award execution. A judgment against an administrator should be de bonis testatoris.99 91 In re Cook, 83 Cal. 415, 23 Pac. 392; 92 Grannis v. Superior Court, 146 93 Phillips v. Phillips, 69 Kan. 324, 76 Pac. 842. 94 Morton v. Morton, 16 Colo. 358, 27 Pac. 718. 95 Metler v. Metler, 32 Wash. 494, 73 Pac. 535. P. P. F. Vol. I-62 95a Cal. Code Civ. Proc., § 473. 96 McDonald v. McDonald, 34 Wash. 293, 75 Pac. 865. 97 Yorke v. Yorke, 3 N. Dak. 343, 55 N. W. 1095. 98 Hurd v. McClellan, 1 Colo. App. 327, 29 Pac. 181. 99 Mattison v. Childs, 5 Colo. 78; Jones v. Perot, 19 Colo. 141, 34 Pac. 728. See Cooper v. De Mainville, 1 Colo App. 16, 27 Pac. 86. § 1533. Judgment in action on bond.-At common law, it was the practice in actions on penal bonds to enter judgment for the full amount of the penalty, to be discharged upon payment of the damages. But under code procedure, a judgment for the amount of the damages is the proper form.100 § 1534. Judgment-Proper on sustaining plea.-Where a plea of the pendency of a former action is sustained, the proper judg ment to be entered is one abating the subsequent action, and not a judgment that the plaintiff take nothing thereby.10. 100 Allen v. King, 4 Colo. App. 319, 35 Pac. 1061. 101 Conbrough v. Adams, 70 Cal. 374, 11 Pac. 634. CHAPTER LVII. VACATING AND AMENDING JUDGMENT. § 1535. Judgments-Validity of, generally.-Every presumption is in favor of the correctness of the judgment of a court of general jurisdiction until the contrary is made affirmatively to appear.1 Jurisdiction having been once acquired over the parties and the subject-matter, every presumption is in favor of the legality of the judgment.2 A judgment is void on its face only when that fact is made apparent by an inspection of the judgment-roll. As a rule, a judgment of a court of general jurisdiction is void in no case except when it appears from the record itself that the court in pronouncing it acted without jurisdiction.* The mere absence of findings does not render a judgment void in any case. And in no case will a judgment be disturbed for immaterial error. But a judgment for the plaintiff obtained through a clear departure from the issues joined cannot be sustained." Nor can a judgment rendered against a garnishee without affirmative proof of indebtedness be sustained. On an application for a writ of habeas corpus, the judgment under which the prisoner is held is a unit, and if one portion of it is without the jurisdiction of the court which made it the whole is void. Judgment 1 Kent v. Dakota etc. Ins. Co., 2 S. Dak. 300, 50 N. W. 85; Renig v. Hecht, 58 Wis. 212, 16 N. W. 548; Credit Foncier v. Rogers, 10 Neb. 184, 4 N. W. 1012. 2 Blake v. Lyon etc. Mfg. Co., 77 N. Y. 626. То same effect, Caruthers v. Hensley, 90 Cal. 559, 27 Pac. 411; Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074; Piper v. Packer, 20 Minn. 274; Jones v. Adams, 19 Nev. 78, 3 Am. St. Rep. 788, 6 Pac. 442; Thompson v. Reno Sav. Bank, 19 Nev. 293, 9 Pac. 883; Murphy v. King, 6 Mont. 30, 9 Pac. 585; McMillan v. Carter, 6 Mont. 215, 9 Pac. 906; Clark v. Baker, 6 Mont. 153, 9 Pac. 911. 8 People v. Thomas, 101 Cal. 571, 36 Pac. 9; People v. Harrison, 84 Cal. 607, 24 Pac. 311; People v. Temple, 103 Cal. 447, 37 Pac. 414; Churchill v. More, 7 Cal. App. 767, 96 Pac. 108; Stubbs v. McGillis (Colo), 96 Pac. 1005. 4 Great West Min. Co. v. Woodmas etc. Min. Co., 14 Colo. 90, 23 Pac. 908. 5 In re Cook, 77 Cal. 220, 11 Am. St. Rep. 267, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567. 6 Tulloch v. Skein Works, 17 Colo. 579, 31 Pac. 229. 7 Jackson v. Ackroyd, 15 Colo. 583, 26 Pac. 132. 8 Union Pacific Ry. Co. v. Gibson, 15 Colo. 299, 25 Pac. 300. 9 Ex parte Kelly, 65 Cal. 154, 3 Pac. 673. rendered against a party to an action after his death is not void on its face. Proceedings must be taken to set aside the judgment before an application for a mandamus can be made by the administrator of the decedent to compel the court to substitute him as a party to the action.10 A judgment in favor of a dead man is a nullity.11 Where, in an action against a firm composed of two persons, the jury renders a general verdict only, in favor of plaintiff and against defendant, it is error for the court, while such verdict remains in the record, to render judgment against the plaintiff, dismissing the action as to one member of the firm, with costs. 12 A party accepting and retaining the fruits of a void judgment is estopped from assailing the judgment itself. As to him such a judgment has the same force and effect as a valid judgment.13 § 1536. Equitable relief.-Equity will relieve a party from a judgment obtained by fraud.14 Where the judgment assailed cannot properly be set aside, the court may adjudge the guilty beneficiary, or his successor with notice, a trustee for the defrauded party.15 A court of equity may vacate a judgment at law obtained by fraud and perjury, but in doing so cannot review questions which have been tried and finally determined in a law action. 16 § 1537. Judgments-Defense. In an action to restrain the enforcement of a voidable judgment, the complaint must show that the plaintiff had a good defense to the action in which the judgment was rendered. Such a defense is sufficiently shown, however, in the absence of a special demurrer, by an allegation that at the time of the entry of the judgment the defendant had no cause of action against the plaintiff.17 In an action by a junior creditor to set aside a prior judgment and execution sale of the property of the debtor on the ground of fraud, the complaint need not allege that an execution had been issued and returned unsatisfied, where it is averred that the judgment debtor has not and never had any property except that sold under the fraudulent judgment.18 The issues of the case cannot be tried a second time on motion to set aside sheriff's sale. 19 § 1538. Judgments-Impeachment-Relief against.-A judgment rendered without obtaining jurisdiction of the person may be impeached by a proceeding in equity, or by answer to an action, where equitable defenses are allowable.20 A party is entitled to equitable relief against a judgment procured by fraud. But such relief will not be granted, unless the party seeking it has been free from negligence.21 And the assistance of equity cannot be invoked so long as the remedy by motion exists. 22 A bill in equity to set aside a decree cannot be sustained where it is clear from the facts pleaded that plaintiff has an adequate remedy at law, by an application to the court rendering the judgment to vacate or modify the same.23 And in order to obtain equitable relief against a judgment alleged to have been fraudulently obtained, it must be averred and shown that there is a valid defense on the merits.24 So the frauds for which equity grants relief against judgments are those which are extrinsic, or collateral to the matter examined in the first suit.25 The fact that the right of appeal was lost by the inadvertence of the clerk of the plaintiff's attorney in failing to file an undertaking on appeal in proper time is not a ground for relief in equity.26 But it does not affect the question of the right of a party to equitable relief against 18 Terney v. Doten, 70 Cal. 399, 11 Pac. 743. As to insufficiency of complaint in action on money judg ment, see Hogan v. Kyle, 7 Wash. 595, 38 Am. St. Rep. 910, 35 Pac. 399. 19 Greenwell v. Moffett, 77 Kan. 41, 93 Pac. 609. 20 Wilson v. Hawthorne, 14 Colo. 530, 20 Am. St. Rep. 290, 24 Pac. 548. 21 Champion v. Woods, 19 Cal. 17, 12 Am. St. Rep. 126, 21 Pac. 534; Amestoy Estate v. City of Los Angeles, Cal. App. 273, 90 Pac. 42. 22 Ede V. Hazen, 61 Cal. 360. Compare Ex Mission Land etc. Co. v. Flash, 97 Cal. 610, 32 Pac. 600. 23 Racey v. Racey, 12 Okla. 650, 73 Pac. 305; Hoover v. Bartlett, 42 Or. 145, 70 Pac. 378; Baer v. Higson, 26 Utah, 78, 72 Pac. 180; Hull v. Calkins, 137 Cal. 84, 69 Pac. 838. 24 Eldred v. White, 102 Cal. 600, 36 Pac. 944; White v. Crow, 110 U. S. 183, 28 L. Ed. 113, 4 Sup. Ct. 71. As to sufficient statement of meritorious defense, see Lang Syne Min. Co. v. Ross, 20 Nev. 127, 19 Am. St. Rep. 337, 18 Pac. 358. 25 In re Griffith, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381. 26 Daly v. Pennie, 86 Cal. 553, 21 Am. St. Rep. 61, 25 Pac. 67. |