Where the record affirmatively discloses that the court is without power to make the order or decree it assumes to make, such order or decree is void and subject to collateral attack.3*

Parties not setting up a known disqualification of the judge cannot collaterally attack the judgment on account thereof.35

A judgment rendered without service of process on defendant can be attacked collaterally.36

Proceedings for the sale of property of one not a party to the action and not served in any way do not bind the owner and are subject to collateral attack.37

If an affidavit seeking service on a nonresident defendant by publication fails in any jurisdictional particular, and judgment is entered in the case, it will be void and subject to collateral attack.39

ery other court in which the proceedings are relied on. In re Moore's Guardianship, 51 Okl. 731, 152 P. 378.

34 Roth v. Union Nat. Bank of Bartlesville, 58 Okl. 604, 160 P. 505; Lee v. Tonsor, 62 Okl. 14, 161 P. 804; Winters v. Oklahoma Portland Cement Co. (Okl.) 164 P. 965.

Where, in ejectment, defendant relied on a default judgment in a suit for specific performance entered in his favor against plaintiff's grantor prior to the execution of the deed to plaintiff, and the judgment showed that the suit was brought in the district where the land lay, and not where the defendants resided, contrary to Act Cong. March 1, 1895, § 7, construed with Act Cong. May 2, 1890, § 32, the judgment, nothing else appearing, was void on its face. Welch v. Ladd, 116 P. 573, 29 Okl. 93.

Where a judgment by default is rendered against defendant in a county other than that of his residence, summons having been served on him at his home, being colorably justified only because the action against him is joined with one against another defendant residing in the county where the suit is brought, a subsequent action on such default judgment cannot be defeated by showing that the petition disclosed on its face that the cause of action against the nonresident was one that could not properly be joined with that against the resident defendant. Ayres v. Wm. Deering & Co., 90 P. 794, 76 Kan. 149.

35 Holloway v. Hall, 79 Okl. 163, 192 P. 219.

36 Pray v. Jenkins, 28 P. 716, 47 Kan. 599.

37 Davies v. Thompson, 61 Okl. 21, 160 P. 75, L. R. A. 1917B, 395.

38 Chaplin v. First Bank of Hitchcock (Okl.) 181 P. 497.

An affidavit for service by publication, if sworn to before an attorney for plaintiff might make the judgment rendered thereon voidable, but not void. Harris v. Burbery, 116 P. 206, 85 Kan. 201.

In an action to foreclose a mortgage based on service by publication only,

In obtaining service by publication, if there is a total failure to state in the notice any material matter required by statute, the service is void and subject to collateral attack, but where there is not such an entire omission of a material matter, and it is inferentially or insufficiently set forth, the service is merely voidable, and can be attacked only on a direct proceeding.

39

the affidavit to obtain the same alleged that personal service could not be made on defendant within the state, and "that this is an action brought for the recovery of real property under a mortgage situated in said county of Lyon." Held that, while the affidavit was imperfect in stating the nature of the action, it was not so defective as to render a judgment based thereon null and void, or subject to a collateral attack. Shippen v. Kimball, 27 P. 813, 47 Kan. 173.

39 Core v. Smith, 102 P. 114, 23 Okl. 909.

In a suit to quiet title, the publication notice incorrectly stated the distances and bearings of lines in the metes and bounds description of the land, but correctly stated the point of beginning and return. By allowing the point of beginning and return to control the errors in distance and bearing, the description embraced the land sought to be described. Held, that a judgment on such notice was not subject to collateral attack. Douglass v. Byers, 53 P. 523, 59 Kan. 481.

A judgment was not rendered void, and hence subject to collateral attack, by the fact that the publication notice in the action in which it was rendered did not describe the land which had been attached in the action, where it indicated the amount of the judgment that would be taken, and that "certain real property attached" would be sold, since there was not an entire omission from the notice of any material matter required by Code Civ. Proc. 74. Garrett v. Struble, 46 P. 943, 57 Kan. 508.

The failure of the publication notice to describe the land involved in an action in rem, or to state that the mortgage to be foreclosed is a real estate mortgage, or to state the amount of the note or debt secured by the mortgage, is not fatal to the judgment on collateral attack. Pettis v. Johnston, 78 Okl. 277, 190 P. 681.

A default decree by a tax deed holder quieting title against a mortgage describing mortgagees by their firm name only, upon service by publication, in an action in which mortgagees were referred to throughout merely by their firm name, is not open to collateral attack because of the failure of the publication notice and other portions of the record to name the mortgagees individually or describe them more definitely. Neiswanger v. Ord, 81 Kan. 63, 105 P. 17, 26 L. R. A. (N. S.) 287.

A notice of publication in an action against plaintiff's grantor, brought before plaintiff purchased, to quiet title, naming defendant therein as "Andrew V. Johnson," was sufficient on collateral attack of the judgment quieting title by plaintiff, though the record showed title to be in "Andrew U. Johnson" when plaintiff purchased in good faith, and hence the judgment bound him. Hungate v. Hetzer, 111 P. 183, 83 Kan. 265.

Service by publication of notice directed to "Mrs. Edward H. Williams"

A decree upon service by publication in a case in which such service is authorized, reciting notice to the defendant for more than twenty days of the pendency of the action, when collaterally attacked is valid.40

A decree of foreclosure rendered against a nonresident defendant on constructive service could not be attacked by him in a suit to quiet title brought by him after it was too late to have the decree opened up.11

41

A judgment in attachment, wherein service was by publication, which was so defective as to be void is void on collateral attack, and an intervener in the proceeding claiming the real estate attached may attack such judgment or service by motion to set the same aside.42

§ 1380.

Presumption of jurisdiction

Jurisdiction of the person and of the subject-matter will be presumed in cases of domestic judgments of courts of general jurisdiction, on a collateral attack, where the record shows nothing to the contrary. 43

As every presumption is in favor of the validity of a judgment of a court of general jurisdiction, an affidavit for service by publication of a nonresident defendant, which has been destroyed, will be presumed to have been sufficient in a collateral attack on the judgment.44

When the Supreme Court takes jurisdiction of a proceeding in error, it will be presumed thereafter, when the question is collaterally raised, that it had jurisdiction; and,,if jurisdiction be denied

was sufficient, as against collateral attack, to give the court jurisdiction of "Jessie L. Williams, wife of Edward H. Williams." Doyle v. Hays Land & Investment Co., 102 P. 496, 80 Kan, 209, 133 Am. St. Rep. 199.

40 Cushing v. Cummings (Okl.) 179 P. 762; Rev. Laws 1910, § 4725 is complied with.

41 Hartz v. Fitts, 132 P. 1187, 89 Kan. 751.

42 Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R. A. (N. S.) 1084. 43 Head v. Daniels, 15 P. 911, 38 Kan. 1.

Where an action has been prosecuted to judgment in a court of competent jurisdiction by procedure regular upon the face of the record, it will be presumed that the parties thereto were living when the action was commenced, and when the judgment was rendered. Hillyard v. Banchor, 118 P. 67, 85 Kan. 516.

44 Core v. Smith, 102 P. 114, 23 Okl. 909.

upon the ground that the proceeding in error was not commenced within one year from final judgment, it will devolve upon those who make the denial to introduce the full record of the proceeding, and to show affirmatively by it that it is full and complete.**

Whenever the jurisdiction of a court depends upon a fact properly determined in the action, the judgment finding such fact is conclusive evidence of its existence and of the jurisdiction of the court, until the judgment is vacated or reversed in a direct proceeding.46 Thus the recital of personal appearance of the defendant is conclusive in a collateral, but not in a direct attack.*7

A finding of the jurisdictional facts in a domestic judgment is conclusive in a collateral attack upon such judgment attempting again to put such facts in issue.48

45 Gille v. Emmons, 59 P. 338, 61 Kan. 217. 46 Miller v. Miller, 130 P. 681, 89 Kan. 151.

The answer of defendant averred that one not a party had an interest in the subject-matter of the action. The journal entry of judgment recited an appearance by such party and an order as to his interest, responsive to the allegations of such answer. The record showed no pleadings by him, nor that he was named as a party in the place, nor that notice of process was served on him. Held, it will be presumed, as against a collateral attack on the judgment, that he made a voluntary appearance. National Bank of America v. Home Security Co., 70 P. 646, 65 Kan. 642.

A judgment roll regular on its face, containing necessary jurisdictional averments, cannot be collaterally attacked. Carolina v. Montgomery (Okl.) 177 P. 612; Blackwell v. McCall, 54 Okl. 96, 153 P. 815; Daugherty v. Feland, 59 Okl. 122, 157 P. 1144.

A domestic judgment or decree by a court of competent jurisdiction, reciting that defendant was duly served, is conclusive on collateral attack. Rice v. Woolery, 38 Okl. 199, 132 P. 817; Crist v. Cosby, 69 P. 885, 11 Okl. 635. Where a court expressly finds that defendant is present, such a finding is not subject to attack in a collateral proceeding. Continental Gin Co. v. De Bord, 123 P. 159, 34 Okl. 66.

47 McIntosh v. Holtgrave, 79 Okl. 63, 191 P. 739. 48 Bruno v. Getzelman (Okl.) 173 P. 850.

Where, in an action in the district court, attachment was levied on personal property belonging to defendant, and after return of the writ the court entered judgment for plaintiff, and adjudged that the property was not exempt from attachment on the ground that it was engaged in interstate commerce, such order and adjudication on the question of jurisdiction was binding on all parties interested, and cannot be questioned except in a direct proceeding. Jessup v. Atchison, T. & S. F. Ry. Co., 100 P. 472, 79 Kan. 429. Where garnishment and attachment proceedings have been instituted in a

A party is not concluded by the decision of the court proceeding without jurisdiction of the subject-matter, and may show the want of jurisdiction, in order to show that he is not bound by the decision. 49

Where a judgment rendered by publication is offered in evidence in a collateral action in the same court, and the affidavit on file shows that the publication was insufficient, parol evidence is admissible to prove that due publication was in fact made.50

Where the district court has jurisdiction of the parties and subject-matter of the action, and the journal of the court recites a trial and judgment in term time, the record imports absolute verity, and cannot, in a collateral proceeding, be overthrown by parol testimony tending to show that the trial was had and the judgment rendered in vacation.51

§ 1383. Errors and irregularities-In general

Where the court has jurisdiction of the subject-matter and the parties, its judgment, although irregular in form, or erroneous, is conclusive, so long as unreversed, and cannot be attacked collaterally.52

suit, and the defendant has made a special appearance to contest the jurisdiction of the court over the subject-matter of the action, and an adverse ruling has been made, and there is sufficient in the record to show that the court had jurisdiction, the order of the court requiring the garnishee to answer, and the other proceedings in attachment, cannot be attacked collateral. ly, and are conclusive until reversed or set aside in a direct action. Axman v. Dueker, 25 P. 582, 45 Kan. 179, judgment affirmed 26 P. 946, 45 Kan. 745. 49 Ewing v. Mallison, 70 P. 369, 65 Kan. 484, 93 Am. St. Rep. 299. Although a recital, contained in a judgment, that service was made on the defendant, raises a strong presumption in favor of the truth of the recital and of the jurisdiction, yet the defendant may show by extrinsic evidence, if such be the fact, that no service was actually made. Thorn v. Salmonson, 15 P. 588, 37 Kan. 441.

50 Gordon v. Munn, 125 P. 1, 87 Kan. 624, Ann. Cas. 1914A, 783, rehearing denied 127 P. 764, 88 Kan. 72, Ann. Cas. 1914A, 783.

51 Mitchell v. Insley, 7 P. 201, 33 Kan. 654.

52 Bank of Santa Fé v. Haskell County Bank, 32 P. 627, 51 Kan. 50. In an action to foreclose a mortgage given by an owner of land jointly with the guardian of his insane wife, a judgment involving an erroneous decision as to whether the property was a homestead, and whether an instrument was with the joint consent of husband and wife, is not open to collateral attack, but is binding until corrected in a direct proceeding. Clevenger v. Figley, 75 P. 1001, 68 Kan. 699.