a void judgment that an attorney having no authority appeared for him in the action.27

§ 1539. Erroneous judgment-Remedy.-Under the Washington practice, where a judgment, erroneous but not void, has been entered against a party, he should either appeal or apply to the court in the manner and within the time prescribed by law to have it set aside. After the expiration of the time prescribed, the district judge has no power to vacate or modify the judgment.28

§ 1540. Vacating or setting aside.-A court of equity will never set aside a judgment for mere error, whether of law or fact, committed in the rendition of the judgment.29 Where the enforcement of a judgment violates his rights, a stranger thereto may maintain a suit to enjoin it.30 When an action is brought in a court of equity to set aside a judgment at law, the attack, although not collateral, is always indirect, and such an attack does not question or dispute the effect of the judgment as an adjudication, but seeks to be relieved from its operation upon equitable. grounds.31 The Colorado statute32 authorizes the court under certain specified circumstances, at any time within six months after adjournment of the term, to relieve a party from a judgment, order, or proceeding taken against him through mistake, inadvertence, surprise, or excusable neglect.33 Similar statutory provisions likewise exist in other states.34 An application to set aside a judg

27 Baker v. O'Riordan, 65 Cal. 368, 4 Pac. 232.

28 Hawks v. Votaw, 1 Wash. 70, 23 Pac. 442. See, also, Bowman v. McGregor, 6 Wash. 118, 32 Pac. 1059; Seattle etc. Ry. Co. v. Johnson, 7 Wash. 97, 34 Pac. 567; Putnam v. Webb, 15 Or. 440, 15 Pac. 711.

29 Wickersham v. Comerford, 104 Cal. 494, 38 Pac. 101. See In re Griffith, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381. As to vacation for fraud or deceit, see Yorke v. Yorke, 3 N. Dak. 343, 55 N. W. 1095; Bent v. Maxwell, 3 N. Mex. 158 (227), 3 Pac. 721; Lang Syne Min. Co. v. Ross, 20 Nev. 128, 19 Am. St. Rep. 337, 18 Pac. 358; Thompson v. Maxwell etc. Ry. Co., 3 N. Mex. 269 (448),

6 Pac. 193. See, also, as to equitable relief against judgment, Merriman v. Walton, 105 Cal. 403, 45 Am. St. Rep. 50, 38 Pac. 1108, 30 L. R. A. 786; Sears v. Hicklin, 13 Colo. 143, 21 Pac. 1022.

30 Crippen v. X. Y. Irrigation Ditch Co., 32 Colo. 447, 76 Pac. 794.

31 Eichhoff v. Eichhoff, 107 Cal. 42, 48 Am. St. Rep. 110, 40 Pac. 24. 32 Code Civ. Proc., § 75.

33 See Clark v. Perry, 17 Colo. 56, 28 Pac. 329; City Block Directory Co. v. App. 4 Colo. App. 350, 35 Pac. 985.

34 See Utah Comp. Laws 1888, § 3256; Cal. Code Civ. Proc., § 473; Or. B. & C. Codes, § 103; Thomas v.

ment in any such case is directed to the sound legal discretion of the trial court, and an order granting the application will not be reversed on appeal unless it clearly appears that the court abused its discretion.35 A motion will not lie to vacate a judgment after the lapse of the time limited by statute, if the judgment is not void on its face, and in all cases, after the lapse of such time, when the attempt is made to vacate the judgment by a proceeding in court for that purpose, an action regularly brought is preferable, and should be required.36 A judgment cannot be set aside on the ground of fraud, which was an issue tendered by the complaint in the action.37 A judgment void on its face is one that appears to be void by inspection of the judgment-roll, and it is only such a judgment that can be attacked either directly or collaterally, without reference to the lapse of time.38 An application to vacate a judgment for want of service of summons upon or appearance of a defendant, is not matter of discretion, but of pure legal right, and does not arise under section 473 of the California Code of Civil Procedure.39 But such vacation does not abate the action when the defendant appears for certain purposes, and he should be permitted to answer or demur.40 If parties stipulate or admit that there was in fact no service of summons, it is the duty of the court to declare the judgment void, as matter of law, upon the admitted facts.11

Morris, 8 Utah, 284, 31 Pac. 446; Yerkes v. Henry, 6 Dak. 5, 50 N. W. 485; Warder v. Patterson, 6 Dak. 83, 50 N. W. 484.

35 Buell v. Emerich, 85 Cal. 116, 24 Pac. 644; O'Connor v. Ellmaker, 83 Cal. 452, 23 Pac. 531; Pearson v. Drobaz Fishing Co., 99 Cal. 425, 34 Pac. 76; Dusy v. Prudom, 95 Cal. 646, 30 Pac. 798; Malone v. Big Flat etc. Min. Co., 93 Cal. 384, 28 Pac. 1063; Livesley V. O'Brien, 6 Wash. 553, 34 Pac. 134; Bozzio v. Vaglio, 10 Wash. 270, 38 Pac. 1042.

36 People v. Harrison, 84 Cal. 607, 611, 24 Pac. 311.

37 Amestoy Estate v. City of Los Angeles, 5 Cal. App. 273, 90 Pac. 42.

38 Id.; Brown v. Wilson, 21 Colo. 309, 52 Am. St. Rep. 228, 40 Pac. 688. See Jacks v. Baldez, 97 Cal. 91, 31 Pac. 899; People v. Temple,

103 Cal. 447, 37 Pac. 414; Eldred v. White, 102 Cal. 600, 36 Pac. 944. Compare Hill v. City Cab Co., 79 Cal. 191, 21 Pac. 728; People v. Harrison, 107 Cal. 541, 40 Pac. 956; People v. Thomas, 101 Cal. 571, 36 Pac. 9.

39 Hunter v. Bryant, 98 Cal. 247, 33 Pac. 51; Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 33 Am. St. Rep. 198, 30 Pac. 385, 32 Pac. 452.

40 Stubbs v. McGillis (Colo.), 96 Pac. 1005.

41 People v. Harrison, 107 Cal. 541, 40 Pac. 956. As to setting aside judgment on ground of surprise, etc., see Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887; Lowell v. Ames, 6 Mont. 187, 9 Pac. 826. As to vacation of void judgment, see Beach v. Beach, 6 Dak. 371, 43 N. W. 701; Hauswirth v. Sullivan, 6 Mont. 203, 9

§ 1541. Judgment-Collateral attack.-When a court has acquired jurisdiction, its subsequent proceedings, however irregular, are not void. The record of the court is conclusive as to all matters decided by it, and no evidence can be received to contradict it upon a collateral attack.42 Sufficiency of the evidence cannot be considered. 43 The main difference between collateral and direct attacks upon a judgment, in respect of the judgment and its recitals, is, that upon a collateral attack the record alone can be inspected, and it is conclusively presumed to be correct, while on a direct attack the true facts may be shown in contradiction of the record, and thus the judgment itself on appeal may be reversed or modified.44 But the judgment and its recitals will be presumed to be correct upon appeal unless the contrary is made to appear.45 A motion to vacate a judgment on the ground that it is void is a direct and not a collateral attack.46 The judgment or decree of a court having jurisdiction to pronounce the same is in respect of the matter directly determined, or actually and necessarily included therein, conclusive upon the parties and those asserting subsequent claims under them, and cannot be collaterally attacked.47 The courts of the United States being courts of superior jurisdiction, their decrees are not open to collateral attack, unless it is affirmatively shown by the record that they had no jurisdiction.48

Pac. 798; McEachern v. Brackett, 8 Wash. 652, 40 Am. St. Rep. 922, 36 Pac. 690. As to procedure on vacating judgment, see Wheeler v. Moore, 10 Wash. 309, 38 Pac. 1053; Whidby Land etc. Co. v. Nye, 5 Wash. 301, 31 Pac. 752. That party must proceed with diligence, see Bozzio v. Vaglio, 10 Wash. 270, 38 Pac. 1042; Darke v. Ireland, Utah, 192, 7 Pac. 714; Heine v. Treadwell, 72 Cal. 217, 13 Pac. 503; Brackett v. Banegas, 99 Cal. 623, 34 Pac. 344. As to modification of judgment, see State V. Superior Court, 8 Wash. 591, 36 Pac. 443; Tacoma Lumber etc. Co. Wolff, 7 Wash. 478, 35 Pac. 115, 755. 42 Ex parte Sternes, 77 Cal. 156, 11 Am. St. Rep. 251, 19 Pac. 275; Harnish v. Bramer, 71 Cal. 156, 11 Pac. 888. See Edgerton v. Edgerton, 12 Mont. 122, 33 Am. St. Rep. 557, 29 Pac. 966, 16 L. R. A. 94.

V.

43 Amestoy Estate v. City of Los Angeles, 5 Cal. App. 273, 90 Pac. 42.

44 Lyons v. Roach, 84 Cal. 27, 23 Pac. 1026. See Morrill v. Morrill, 20 Or. 96, 23 Am. St. Rep. 95, 25 Pac. 362, 11 L. R. A. 155.

45 Id. See Sichler v. Look, 93 Cal.. 600, 29 Pac. 220.

46 Reinhart v. Luzo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089. See People v. Mullan, 65 Cal. 396, 4 Pac. 348.

47 Finley v. Houser, 22 Or. 562, 30 Pac. 494. See, also, North Pacific Cycle Co. v. Thomas, 26 Or. 381, 46 Am. St. Rep. 636, 38 Pac. 307; Berry v. King, 15 Or. 165, 13 Pac. 772; Vantilburgh v. Black, 2 Mont. 371.

48 Applegate v. Doell, 15 Or. 513, 16 Pac. 651, 17 Or. 300, 20 Pac. 429. See Dowell v. Applegate, 152 U. S. 334, 38 L. Ed. 463, 14 Sup. Ct. 611;. reversing 24 Or. 440, 33 Pac. 937.

A judgment regular on its face is not subject to collateral attack on the grounds that it is void.49 Probate courts being courts of record with original jurisdiction, their orders cannot be collaterally attacked, but only by proper motion or an appeal.50 Defendant's sureties on a bond on appeal cannot attack a decree of the probate court distributing plaintiff's interest in the judgment against said defendant.51 A second judgment entered on record in place of a former one, marked void and vacated, is a final judgment, and cannot be impeached by matters outside the record.52 Collateral attack on a non-appealable judgment awarding costs cannot be had on the grounds that the party was not liable for costs.53 As between the judgment debtor and the purchaser at an execution sale, the validity of the judgment cannot be collaterally attacked;54 likewise between a stockholder and a judgment creditor of the corporation, attempting to realize upon judgment against the corporation out of stock subscriptions not yet paid.55

§ 1542. Grounds for collateral attack.-Where it affirmatively appears on the face of the judgment record that the court did not have jurisdiction of the defendant, a judgment is at all times. open to either direct or collateral attack.56 If such defect does not appear on the face of the record, the attack cannot be made collateral.57 If on a collateral attack on a judgment the jurisdiction can in any way be upheld, it will be done, though the facts showing jurisdiction are defectively stated, and inferences must be indulged in favor of the judgment.58 Want of service. of process will sustain the attack.59 The presumptions in favor of the judgment are the same in case of a service by publication as in case of personal service.60 It will be presumed, as against

49 Noerdlinger v. Huff, 31 Wash. 360, 72 Pac. 73.

50 Clark v. Rossier, 10 Idaho, 348, 78 Pac. 358.

51 Todhunter v. Klemmer, 134 Cal. 60, 66 Pac. 75.

52 Galvin v. Palmer, 134 Cal. 426, 66 Pac. 572.

53 Howe v. Southrey, 144 Cal. 767, 18 Pac. 259.

54 Schlosser v. Beemer, 40 Or. 412, 67 Pac. 299.

55 Robinson v. Blood, 151 Cal. 504, 91 Pac. 258.

56 Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007; Ewing v. Mallison, 65 Kan. 484, 93 Am. St. Rep. 299, 70 Pac. 369. See, also, Haupt v. Simington, 27 Mont. 480, 94 Am. St. Rep. 839, 71 Pac. 672.

57 Aldrich v. Barton, 153 Cal. 488, 95 Pac. 900.

58 Mesnager v. De Leonis, 140 Cal. 402, 73 Pac. 1052.

59 Bauer v. Widholm, 49 Wash. 310, 95 Pac. 277.

60 McHatton v. Rhodes, 143 Cal. 275, 101 Am. St. Rep. 125, 76 Pac. 1036.

a collateral attack on the judgment, when one is recited in the journal entry of the judgment to have made an appearance, that such person did make a voluntary appearance, even though the pleadings do not show that he was made a party.61 Where a judgment of a court of record contains a finding that personal service was made upon defendant, it cannot be attacked collaterally.62 A judgment as to whether property is a homestead, and a mortgage thereon was made with the joint consent of the husband and wife, is not open to collateral attack, but must be corrected in direct proceedings.63 An erroneous decision of and on the issues cannot be collaterally attacked.64

Where a court has jurisdiction of the subject-matter and of the parties, and the judgment is not in excess of the jurisdiction, irregularities in the proceedings will not render the judgment void, but, until vacated or set aside in a proper proceeding, it is binding on the parties.65

A judgment may be attacked for fraud by answer and crosscomplaint, but the defense of collusion with defendant's attorney, being a collateral attack, cannot be made.67 In a suit to set aside a conveyance as in fraud of creditors, the judgment cannot be impeached for fraud.68 The defense that a note was paid before judgment was obtained upon the note is not available in suit on the judgment.69

§ 1543. Examples of collateral attack.—A collateral attack is an indirect attack upon the judgment, such as where a suit is brought in equity to set aside a judgment rendered in a previous action at law;70 an attempt to impeach a judgment by matters dehors the record;71 the claim by an intervening creditor that a mortgage given by the estate is invalid, because the probate

61 National Bank of America v. Home Security Co., 65 Kan. 642, 70 Pac. 646.

62 Crist v. Crosby, 11 Okla. 635, 69 Pac. 885.

63 Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001.

64 Koehler v. Holt Mfg. Co., 146 Cal. 335, 80 Pac. 73.

65 Smith v. Finger, 15 Okla. 120, 79 Pac. 759; Amestoy Estate v. Los Angeles, 5 Cal. App. 273, 90 Pac.

42.

66 Relender v. Riggs, 20 Colo. App. 423, 79 Pac. 328.

67 Harter v. Shull, 17 Colo. App. 162, 67 Pac. 911.

68 Budlong v. Budlong, 32 Wash. 672, 73 Pac. 783.

69 Harter v. Shull, 17 Colo. App. 162, 67 Pac. 911.

70 Le Mesnager v. Variel 144 Cal. 463, 103 Am. St. Rep. 91, 77 Pac. 988.

71 Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007.