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equally worthless. It neither binds nor bars anyone.

All

acts performed under it, all claims flowing out of it, are void. All parties attempting to enforce it may be responsible as trespassers. A purchaser at a sale by virtue of its authority, finds himself without title and without redress. The first most material inquiry in relation to a judgment or decree then, is in reference to its validity. For, if it be null, no action on the part of the defendant, no resulting equity in the hands of third persons, no power residing in any Legislature or other department of the Government can invest it with any of the elements of power or vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it, therefore, cannot prevent the plaintiff from proceeding to obtain a valid judgment in the same cause, either in which the action in which the void judgment was given, or in another action.3*

A purchaser at a judicial sale made under a void judgment cannot sustain his title. Title to real estate sold under a voidable judgment is good as long as the judgment remains in force.

Another distinction between void and voidable judgments is lack of power, or want of jurisdiction in the court, and a wrongful or defective execution of power. In the first instance, all acts of a court not having jurisdiction or power, are void, in the latter, voidable only. A court then, may act, first, without power or jurisdiction; secondly, having power or jurisdiction, may exercise it wrongfully; or, thirdly, irregularly. In the first instance, the act or judgment of the court is wholly void, and is as though it had not been done. Second, is wrong and must be reversed on error. Third, is irregular, and must be corrected by motion.35

34 Freeman on Judgments, Sec. 117. 35 Lessee v. Loring, 17 O. S. 423. If the judgment or decree is void, the land itself sold to satisfy it may be recovered back, and such proceeding may be impeached col

laterally. The result or consequence in such case is precisely as though no such judgment or decree had ever been rendered or pronounced. If a judgment or decree be not void, but simply erroneous, subject to

Sec. 92. Void judgments.

Where a court undertakes to enter a judgment in an amount beyond the limits of its jurisdiction, the judgment will be void, and where the terms of court are, under the law, fixed at stated periods, and the court fails to convene at the time so fixed, by reason thereof, the court is not legally in session, and the parties to an action cannot, by agreement, confer jurisdiction upon the court to render a judgment binding upon the parties.36

It has been held that where a service by publication has been made without an affidavit having been first filed, the service is void; and every subsequent proceeding founded on such service, including the judgment, execution or order of sale, the sale, and sheriff's deed must necessarily be void.37 If an unauthorized person brings an action in the name of a party who has not consented thereto, such action is fictitious and the court does not acquire jurisdiction of the plaintiff named, or of the subject-matter, and any judgment rendered in such proceedings, is void.38

A personal judgment rendered against a defendant without notice is void.39 A judgment entered on a lost pleading over the objection of counsel is error."

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40

Kirkley v. Mining Co., 4 Colo. 117;
Francis v. Wells, 4 Colo. 274.

37 Romig v. Gillette, 10 Okla. 186, 62 Pac. 807; Harris v. Claplin, 36 Kan. 543, 13 Pac. 830; Grouch v. Martin, 47 Kan. 313, 27 Pac. 985. 38 Southern v. Ward, 16 Okla. 131, 85 Pac. 459.

39 McNeal v. Eddy, 24 Kan. 108; Romig v. Gillette, 10 Okla. 186, 62 Pac. 805. A judgment for alimony, when the court was closed, and the judge out of the county, is erroneous, and, on appeal, will be held to be void. Packard v. Packard, 34 Kan. 53, 7 Pac. 628.

40 Grimson v. Russell, 9 N. W. (Neb.) 647.

Sec. 93. Judgment may determine ultimate right of parties— Judgment may be rendered against one or more

parties.

Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of plaintiff to serve summons on the other defendants, or proceed in the cause against the defendant or defendants served.41

Sec. 94. Dismissal of an action without prejudice.

An action may be dismissed without prejudice to a future action:

First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.

Second. By the court, where the plaintiff fails to appear on the trial.

41 Snyder, 5,917; Wilson, 4,584; Kansas, 4,845 (1901), identical; Nebraska, 1,414 (1907), identical; Ohio Gen. Code, Secs. 11,583 and 11,584 (1910), identical; Outcalt v. Collins, Okla. 473, 58 Pac. 642; Schie v. Schie, 6 Kan. App. 136, 50 Pac. 903; School Dist. V. Koontze, 92 N. W. (Neb.) 597; Rogencamp v. Heargraves, 58 N. W. (Neb.) 162; Southerland v. Holiday, 90 N. W. (Neb.) 937; Lamb v. Gregory, 11 N. W. (Neb.)

755; Ryan v. State, 7 N. W. (Neb.)
276; Smith v. Bank, 26 O. S. 141;
Lampkin v. Chisom, 10 O. S. 451;
Smithers v. Rainey, 14 O. S. 287;
Robey v. Ramsberger, 27 0. S.
674; Humphreys v. Huffman, 33
O. S. 395; Meade v. McGrow, 19
O. S. 55; King v. Bishop, 44 O. S.
221; Mason v. Alexander, 44 O. S.
334;
Aucker v. Adams, 23 0. S.
543; Hempy v. Ransom, 23 O. S.
312.

Third. By the court, for want of necessary parties. Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

Fifth. By the court, for the disobedience by the plaintiff of an order concerning the proceedings in the action.

Sixth. In all other cases upon the trial of an action, the decision must be upon the merits.*

42

Sec. 95. Plaintiff may dismiss certain actions.

A plaintiff may, on the payment of costs, and without an order of court, dismiss any civil action brought by him, at any time before a petition of intervention, or answer praying for affirmative relief against him is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of costs, and without any order of court, dismiss his action after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal will not prejudice the right of the intervenor or defendant, to proceed with the action. Any defendant or intervenor may, in like manner, dismiss his action against a plaintiff, without an order of court, at any time before the trial is begun, on payment of costs made on the claim filed by him. All parties to a civil action may, at any time, before trial, without an order of court, and on payment of costs, by

42 Snyder, 5,918; Wilson, 4,585; Kansas, 4,846 (1901), identical; Nebraska, 1,419 (1907), identical; Wyman v. Herrard, 9 Okla. 35, 50 Pac. 1,009; Hove v. Parker, 18 Okla. 282, 90 Pac. 15; Aultman v. Caldwell, 14 Okla. 472, 78 Pac. 319; Dickerman v. Crane, 41 Kan. 150, 21 Pac. 167; National v. Crane, 50 Kan. 49, 31 Pac. 682; Kansas v. Walker, 50 Kan. 739, 32 Pac. 365; Pugsley v. Chicago, 69 Kan. 599, 77 Pac. 579; Wilkerson v. Mears,

77 Kan. 273, 94 Pac. 136; Luton v. Cooper, 106 N. W. (Neb.) 170; Thornbill v. Hargraves, 107 N. W. (Neb.) 847; Bill v. Dalton, 93 N. W. (Neb.) 930; Horton v. State, 88 N. W. (Neb.) 146; Chaney v. Cooper, 16 N. W. (Neb.) 471; Grimes v. Chamberlain, 43 N. W. (Neb.) 395; Beales v. Western, 74 N. W. (Neb.) 54; Boyd v. Munson, 76 N. W. (Neb.) 552; Houck v. Lumm, 77 N. W. (Neb.) 51.

agreement, dismiss the action. Such dismissal is required to be in writing and signed by the party, or his attorney, and must be filed with the clerk of the district court, the judge or clerk of the county court, or the justice, where the action is pending, who must note the fact on the proper record: Provided, such dismissal will be held to be without prejudice, unless the words, "with prejudice," be expressed therein.+3

Sec. 96. Dismissal may not affect set-off or counterclaim, when.

In any action where a set-off or counterclaim has been presented, the defendant will have the right of proceeding to the trial on his claim, although the plaintiff may have dismissed his action, or failed to appear.**

Sec. 97. The judgment in an action to enforce a mortgage or other lien-The order of sale.

In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment, or judgments, shall be rendered for the amount, or amounts due, as well to the plaintiff as the other parties to the action having liens on the mortgaged premises, by mortgage or otherwise, with interest thereon, and for the sale of the property charged, and the application of the proceeds, or such application may be reserved for the further order of the court; and the court is required to tax the costs, attorneys' fees, and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, to be collected on the order of sale or sales, issued thereon; when the same mortgage embraces separate tracts of lands situated in two or more counties, the sheriff of each county is required to make sale of the lands situated in the county

43 Snyder, 5,919; Wilson, 4,586. 44 Snyder, 5,921; Wilson, 4,587; Kansas, 4,847 (1901), identical; Nebraska, 1,421 (1907), identical; Wyman v. Harrard, 9 Okla. 35, 59

Pac. 1,009; Venable v. Dutch, 37 Kan. 515, 15 Pac. 520; Corlette v. Mutual, 60 Kan. 134, 55 Pac. 844; Amos v. Humboldt, 21 Kan. 474.

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