if it is subject to collateral attack, be objected to on the ground of want of jurisdiction, and the objection must be sustained.1

The question frequently arises as to what constitutes a direct attack upon the jurisdiction of the court. Where the objection is made by motion, demurrer, plea or answer, or in any other mode allowed by law, in the court in which the action is pending, and in that action, or in the appellate court, in the action, by motion, by assignment of error, or in any other mode allowed by law, the attack is direct.

So where a motion is made in the court in which the judgment is rendered, in the manner and within the time authorized by statute.2

It is held in some cases that an attack made upon a judgment by motion, not made under the statute or within the time limited, is a direct attack. But it is believed that these cases do not state the law correctly. The decisions referred to are clearly inconsistent with the statement contained in the opinions that the attack is direct, as they all hold that on such a motion the judgment can only be attacked on the ground that it is void on its face. This is equivalent to holding that the attack is collateral and not direct.

It is held that an action brought in the same court to set aside the judgment for want of jurisdiction is a direct attack. But it makes no difference whether an action is brought in the same or another court, and the better rule seems to be that in either case the attack is collateral."

McMinn v. Whelan, 27 Cal. 310, 311; Rape . Heaton, 9 Wis. 328, 332; 76 Am. Dec. 269.

2

People v. Mullan, 65 Cal. 396; 4 Pac. Rep. 348; Reynolds v. Fleming, 30 Kan. 106; 1 Pac. Rep. 64.

3 People v. Green, 74 Cal. 400; 16 Pac. Rep. 197; People v. Pearson, 76 Cal. 400; 18 Pac. Rep. 424.

People v. Harrison, 84 Cal. 607; 24 Pac. Rep. 311.

Newcomb v. Dewey, 27 Ia. 381, 387; Stone v. Kerry, 31 Ia. 582; Johnson v. Ramsey, 91 Ind. 189.

6

Johnson v. Jones, 2 Neb. 126; Rogers v. Beauchamp, 102 Ind. 33; 1

N. E. Rep. 185; Exchange Bank v. Ault, 102 Ind. 322; 1 N. E. Rep. 562.

Where the question arises in some other action or proceeding, not brought directly to set aside the judgment, as for example where an action is brought on the judgment, whether in the court rendering it or in some other court, or where the judgment is offered in evidence in another action or proceeding, whether in the same or in another court, the attack is collateral.

The general rule is that the jurisdiction of a court of general jurisdiction will be presumed, and can not be collaterally attacked.' But there are exceptions to this rule. One of these exceptions is that where the court is one of general jurisdiction, but in the case in question was required to proceed in a special manner provided by statute, or where the mode of acquiring and exercising jurisdiction is special and statutory, and the party to be affected is a non-resident of the state in which the judgment is sought to be recovered, no such presumption will prevail, and the judgment is open to collateral attack.2

So the weight of authority seems to be that where an action is brought to recover upon a foreign judgment, including a judgment of another state, the jurisdiction of a court of general jurisdiction is open to attack, not only against the presumption in favor of its jurisdiction, but against a showing of jurisdiction appearing in the record. But, as we have seen elsewhere, this proposition has not gone unchallenged, but is opposed by numerous authorities.2

And where the proceeding in a foreign court is one in rem, it may be shown not only that the subject-matter, generally, was not within the jurisdiction of the court, but that the particular property in controversy was not within such jurisdiction.3

The right to contest a judgment for want of jurisdiction is not confined to parties to the judgment. It extends to

1 Ante, sec. 7; post, secs. 23, 25.

3 Rose v. Himely, 4 Cranch, 241, 268.

2 Post, secs. 23, 25.

others who have succeeded to their rights that are subject to the judgment if enforced.'

Where a judgment is void on its face, the court has inherent power to set it aside, upon a proper showing, and the statutes authorizing a motion to vacate within a limited time are usually held not to affect this power. But the question sometimes arises whether, after a long space of time has intervened, the judgment can be vacated on motion, or whether it is not necessary to bring suit for that purpose. The right to obtain such relief by motion. has been upheld; but the better rule seems to be that no such motion can properly be entertained after the term, or where the time within which to move is fixed by law, after the time limited-and that, after that time, an action is necessary. It must not be understood from this, however, that a court is bound, after the term, to enforce a void judgment. It has control over its process, and may decline to allow it to be used to execute such a judgment, and may arrest its process when issued thereon.

An

appearance by an attorney may be shown, in an action on a foreign judgment, to have been entered without authority, and the want of jurisdiction thus established." Whether this can be done in case of a domestic judgment is a disputed question upon which the authorities are conflicting. The weight of authority seems to be that the want of authority of the attorney to appear can not be shown collaterally.7 But there are cases holding that there is no difference between foreign and domestic judg

People v. Mullan, 65 Cal. 396; 4 Pac. Rep. 348.

People v. Greene, 74 Cal. 400; 16 Pac. Rep. 197.

People v. Greene, 74 Cal. 400; 16 Pac. Rep. 197; People v. Mullan, 65 Cal. 396; 4 Pac. Rep. 348; People v. Pearson, 76 Cal. 400; 18 Pac.

Rep. 424.

'Bell v.

Thompson, 19 Cal. 706; People v. Goodhue, 80 Cal. 199; 22 Pac. Rep. 66; People v. Harrison, 84 Cal. 607; 24 Pac. Rep. 311.

5

Chipman

v. Bowman, 14 Cal. 158; Logan v. Hillegass, 16 Cal. 200; Bell v. Thompson, 19 Cal. 707.

6

Ante, secs. 13, 20; post, secs. 23, 25; Harshey v. Blackmarr, 20 Ia. 161;

89 Am. Dec. 520.

Ante, sec. 13; post, secs. 23, 25; Callen v. Ellison, 13 Ohio St. 446; 82 Am. Dec. 448, 454.

ments in this respect, and that in either case the judgment may be overthrown, even in a collateral proceeding, by proof that the appearance of the attorney was unauthorized.'

Generally, as we have shown in another place, the court in which the judgment was taken will relieve the party from the judgment upon his coming in and submitting to the jurisdiction, if a resident of the state, and absolutely if a non-resident.2

The authorities on the question growing out of the unauthorized appearance of attorneys have been fully considered in another place, and to undertake to discuss them in this connection would be mere repetition."

23. HOW JURISDICTION PROVED AND DISPROVED.-The question whether jurisdiction exists, or did exist in a given court, over the subject-matter, or of the persons of the parties, may arise in various ways. The attack upon its jurisdiction may be in a direct proceeding or collaterally. It may be presented to the court in which the action is pending, or the court to which the action is appealed, or to some other court. The manner in which the jurisdiction of a court may be attacked is considered elsewhere in this work.3

We are now to inquire how the jurisdiction of the court may be proved or disproved when attacked. Sometimes it is necessary to allege and prove the jurisdiction of a court where it is not attacked, as in case of an action brought upon the judgment of a court. And the proof necessary to establish such jurisdiction depends materially upon the character of the court, whether it is one of general or superior, or of inferior or special jurisdiction, and whether it is a domestic or foreign court. The difference between courts of general and of special jurisdiction

1 Ante, sec. 13; post, secs. 23, 25; Harshey v. Blackmarr, 20 Ia. 161; 89 Am. Dec. 520, 523.

2 Ante, sec. 13.

3

Ante, sec. 22.

has been considered.' And the presumption that prevails in favor of the jurisdiction of courts of general and superior jurisdiction has also received attention."

Whenever the jurisdiction of a court will be presumed this presumption alone establishes its jurisdiction, and the party asserting a right under its judgment need make no proof until this presumption is overcome by some proof on the other side. But if the court is one whose jurisdiction will not be presumed, every fact necessary to show that it had jurisdiction must be proved.

If the question is as to the jurisdiction of the subjectmatter the law will show of what the court has jurisdiction, and the pleadings in the cause will usually show whether the subject-matter in dispute is within that jurisdiction or not.

If the judgment or proceeding is of a court of a foreign country, or of another state in the United States, the law giving the court jurisdiction must, in the absence of any presumption in favor of its jurisdiction, be proved.*

If the court is one of general jurisdiction no such proof is necessary as its jurisdiction will be presumed whether the attempt to enforce the judgment is made in the state where the same was rendered or in a sister state." But there is this difference, according to the weight of authority, between a domestic and a foreign judgment. As to the former the presumption in favor of jurisdiction is conclusive, but as to the latter it is only prima facie evidence of jurisdiction.*

1 Ante, secs. 7, 20, 22.

Post, sec. 25.

3 Bruckman v. Taussig, 7 Colo. 561; 5 Pac. Rep. 152.

Rape v. Heaton, 9 Wis. 328; 76 Am. Dec. 269; Sheldon v. Hopkins,

7 Wend. 435; Thomas v. Robinson, 3 Wend. 268.

3

Ante, sec. 22; post, sec. 25; Freeman on Judg., secs. 452, 453, 518;

Bruckman v. Taussig, 7 Col. 561; 5 Pac. Rep. 152.

6

* Ante, sec. 22; post, sec. 25; Coit v. Haven, 30 Conn. 190; 79 Am. Dec.

244.

In Coit v. Haven, supra, the court said: "We do not understand that, upon the authorities at home or abroad, there is any contrariety of opinion, that a domestic judgment rendered by a court of general jurisdiction, where no want of jurisdiction is apparent on the