and a district court is without jurisdiction to determine the motion.68

After judgment has been rendered it was competent for the court at the same term to set the judgment aside on its own motion, having ascertained that the complainant was mentally incompeten and that the court was without jurisdiction.69

§ 1310. Other remedies

The power of the trial courts to vacate or modify their judgments or orders at or after the term does not authorize setting aside judgment or final order at subsequent term for errors of law reviewable on motion for new trial at former term.70

A petition to vacate will not lie where the ground alleged is unavoidable casualty preventing a motion for new trial within three days, since unavoidable casualty is ground for filing a motion for new trial after expiration of three days from rendition of judgment.71

Defendants' remedy to reverse a judgment by proceedings in error and their remedy to proceed to open the judgment under Rev. Laws 1910, § 4728, being cumulative, the right to proceed under such section was not waived by the commencement of proceedings in error.72

§ 1311. Errors-Irregularities

A refusal to set aside a judgment, rendered without trial, when the issues were not made up, whereby substantial rights of parties were adversely determined, is ground for reversal.73

A judgment which is outside of the issues, and on a matter not submitted for determination is a nullity, and may be set aside at any time on motion of defendant.74

A judgment void on its face-that is when its invalidity is shown by the judgment roll-may be vacated by the court rendering it on motion within or after three years.75

68 Boardman Co. v. Cobb, 62 Okl. 165, 162 P. 729.

69 State v. Jehlik, 71 P. 572, 66 Kan. 301, 61 L. R. A. 265.

79 McCornack v. Fleming (Okl.) 172 P. 952.

71 Etna Building & Loan Ass'n v. Smith (Okl.) 175 P. 833.

72 Siddell v. McMillan, 45 Okl. 800, 146 P. 911.

73 United States Fidelity & Guaranty Co. v. Fidelity Trust Co., 49 Okl. 398, 153 P. 195; General Electric Co. v. Sapulpa & I. Ry. Co., 49 Okl. 376, 153 P. 189. 74 Gille v. Emmons, 48 P. 569, 58 Kan. 118, 62 Am. St. Rep. 609.

75 Pettis v. Johnston, 78 Okl. 277, 190 P. 681.

Journal entries of judgment reciting service, filing of answers, setting for trial, and ordering of judgment for plaintiff, do not show that judgment was rendered on the pleadings, and relief cannot be granted for errors during the trial on motion to vacate the judgment."

A defendant, served with summons and failing to answer or appear at the trial for any purpose, cannot, after judgment, either on a motion or a petition, have the judgment set aside and vacated for alleged errors committed during the trial of the cause."

A judgment rendered in vacation upon a trial and submission at the preceding term should be set aside, and a judgment should be rendered at the next term.78

Where the court after trial renders judgment and at the same term sets the same aside, it is error at a subsequent term to render judgment therein without another trial.79

A judgment will not be set aside because plaintiff's cost bond is void, where the defendant made a general appearance.s

The power of trial courts to vacate or modify their judgments at or after the term does not authorize the setting aside of a judgment at a subsequent term for mere errors of law which might have been corrected by motion for a new trial,81

Where a court had jurisdiction of the parties, subject-matter, and particular question adjudicated, its judgment will not ordinarily be

76 Kaufman v. Grow, 59 Okl. 193, 158 P. 300.

77 Sexton v. Rock Island Lumber & Mfg. Co., 30 P. 164, 49 Kan. 153.

78 Nason v. Patten, 129 P. 138, 88 Kan, 472,

79 Brown v. Capital Townsite Co., 96 P. 587, 21 Okl. 586.

so State Bank of St. John v. Gruver, 51 P. 915, 7 Kan. App. 695.

81 Clark v. Roman, 50 Okl. 780, 151 P. 479.

In a trial at which the defendant was represented by counsel, a judgment of a court having jurisdiction for plaintiff is not void for mistake of law. and will not be vacated on petition after term Haggerty v Terwilliger (Okl) 169 P. 872; Martindale v. Battey, 84 P. 527, 73 Kan. 92; Peirson v. Benedict, 48 P. 996, 5 Kan. App. 790.

The power given by Rev. Laws 1910, § 5274, to vacate or modify judgments, does not authorize the setting aside of a judgment at a subsequent term for mere errors of law subject to review on motion for new trial when judgment was rendered. Gill v. Executive Committee of Home Missions of Presbyterian Church, 52 Okl. 553, 152 P. 812.

set aside on the ground that the petition failed to state a cause of action, where no appeal was prosecuted therefrom and where the petition was amendable.82

§ 1314. Operation and effect

Where an order or judgment is set aside at the term at which it is made, the parties are remitted to the remedies formerly had, as though the order or judgment had not been made.88

The rights of one who purchases land on the faith of a judgment of a court of competent jurisdiction are not disturbed by a subsequent modification of such judgment.8*

DIVISION II.-PROCEEDINGS

§ 1315. Motion-Form

"The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion,

82 Bell v. Ford (Okl.) 173 P. 524.

In trial at which defendant was represented by counsel, a judgment of a court having jurisdiction for plaintiff is not void for amendable defect or insufficiency of petition, and will not be vacated on such grounds on petition after term. Haggerty v. Terwilliger (Okl.) 169 P. 872.

Where defendant was duly summoned, it was compelled to take notice of all subsequent proceedings, and, if aggrieved by the court's action, to appeal, as it could not wait until all remedy by appeal had become unavailable, and then ask the court to set the judgment aside because the complaint was demurrable for want of facts. Board of Com'rs of Wyandotte County v. Equitable Inv. Trust Co., 103 P. 996, 80 Kan. 492.

83 Todd v. Orr, 44 Okl. 459, 145 P. 393.

A judicial order setting aside a judgment cannot be attacked by motion filed more than three years afterwards, where no objection was made or appeal taken. Error in vacating a judgment, which the court has jurisdiction to do, cannot be availed of by a litigant, unless it be appealed from or otherwise legally reviewed. Todd v. Orr, 44 Okl. 459, 145 P. 393.

84 Pritchard v. Madren, 2 P. 691, 31 Kan. 38.

Where plaintiff obtained judgment in action to quiet title, and no motion for new trial was filed, and the term adjourned, and judgment became final, and then conveyed to a purchaser for value without notice, vacation of judgment in subsequent independent action under Rev. Laws 1910, § 5269, did not divest purchaser's title in view of sections 4728, 5176, and 5271. Van Noy v. Jackson (Okl.) 171 P. 462.

Rights of bona fide purchaser of realty who, in good faith for valuable consideration and in reliance on a judgment quieting his grantor's title, acquires the realty by warranty deed, are protected by Code Civ. Proc. § 83 (Gen. St. 1909, § 5676), although judgment may be opened for further consideration as to rights of original parties. Whiteman v. Cornwell, 164 P. 280, 100 Kan. 234.

upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment, because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term." 85

Both at common law and under statutes providing that a void judgment may be vacated at any time on motion of a party or any person affected thereby, a court at any time during the term at which any void judgment is rendered may set it aside without no

85 Rev. Laws 1910, § 5268.

After the action has been disposed of, and the term has ended, special notice is necessary on a motion to amend the record by filing a new proof of publication. Hammerslough v. Hackett, 1 P. 41, 30 Kan. 57.

When a motion is made to vacate or modify an order 20 days after the order was made, and no service of such motion had upon the opposite party. it is no error to overrule such motion. Byington v. Call, 13 P. 738, 36 Kan. 455. A motion, filed more than nine years after an order approving a receiver's final report, to set aside such order because receiver fraudulently failed to account for certain assets, which did not comply with Rev. Laws 1910, § 5269. was properly denied. Farmers' Hardware & Implement Co. v. Parlin & Orendorff Co. (Okl.) 176 P. 888.

This statute applies to a motion to vacate as void a decree in foreclosure and a sale thereunder. Harding v. Gillett, 107 P. 665, 25 Okl. 199.

Motion to vacate judgment held properly denied. Baker v. Stonebraker, 121 P. 255, 32 Okl. 88.

By the express provisions of Code Civ. Proc. §§ 535, 568, 569, 575, a judgment irregularly obtained or a void judgment may be corrected or vacated on motion, on reasonable notice to the adverse party or to his attorney of record in the action. First Nat. Bank v. Wm. B. Grimes Dry Goods Co., 26 P. 56, 45 Kan. 510.

On an application for a writ of coram nobis, the court will not weigh conflicting evidence. Dobbs v. State, 65 P. 658, 83 Kan. 321. The application for a writ of error coram nobis must show that, if the facts on which the error is predicated had been presented to the trial court, the judgment complained of could not have been entered. Id. Newly-discovered material evidence cannot be made the basis for a writ of coram nobis. Id. The writ of coram nobis can not be made the foundation for the examination of an alleged error of fact, where, by the exercise of all reasonable diligence, such fact might have been presented to the court on the trial, or on a motion for a new trial. Id.

After the close of the term at which a sheriff's sale was confirmed it is error for a court to set aside the order of confirmation on motion without notice to the opposite party. Alliance Trust Co. v. Barrett, 50 P. 465, 6 Kav. App. 689.

Service of notice of application to open judgment under Code Civ. Proc. § 83 (Gen. St. 1909, § 5676), which under section 558 (section 6153) must be in writing, may be by registered letter mailed to plaintiff's attorney of record, and his signature on the return card acknowledging receipt thereof will be considered prima facie proof of such service. Taylor v. Woodbury, 120 P. 367, 86 Kan. 236.

tice, and may do so at any time after the term, upon reasonable notice given to the parties affected by the order.86

Where the defendant incorporates nonjurisdictional grounds in a motion to set aside a judgment for defective service, he places himself in the same position as though he had appeared at the trial."7

(Caption.)

MOTION TO VACATE JUDGMENT

87

Comes now the above named defendant, C. D., appearing specially and for the purpose of this motion only, and moves the court to vacate and set aside the judgment rendered herein on the

day of —

-, 19, for the following reasons, to wit:

1. The court had no jurisdiction of the subject-matter of this action.

2. The court had no jurisdiction of the person of this defendant. 3. This defendant never appeared in said action, and the summons in said action was served upon them in county, Oklahoma, as will fully appear from the records and files in said cause. 4. Said judgment is absolutely void upon the face of the record, as no appearance was ever made in said cause or summons served upon said defendant in county, Oklahoma, as appears fully

from the record in said cause.

X. Y., Attorney for Defendant,

§ 1316. Petition-Form

For the Purpose of This Motion Only.

"The proceedings to vacate or modify the judgment or order, on the grounds mentioned in subdivisions four, five, six, seven, eight and nine, of the second preceding section, shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition, a summons shall issue and be served as in the commencement of an action." 88

So Harding v. Gillett, 107 P. 665, 25 Okl. 199.

S7 Schultz v. Stiner, 155 P. 1073, 97 Kan. 555, rehearing denied 157 P. 265. 93 Kan. 45.

88 Rev. Laws 1910, § 5269.

Where an action is brought under Wilson's Rev. & Ann. St. 1903, § 4760, to vacate or modify a judgment in the same court, and between the same parties, as the original action, and is given the same title, the fact that the clerk