47 Wash. 194 | Wash. | 1907
This is an action in equity to vacate a judg-
ment, upon the ground that in the original action no summons, complaint, nor any process of any kind was served upon this plaintiff, who was one of the defendants therein. A. demurrer was sustained to the complaint, upon the ground that it did not allege that appellant had a defense upon the merits to the original suit. Appellant electing to stand upon his complaint, a judgment of dismissal was entered, and from this the present appeal is prosecuted.
It is urged by appellant that, in an action to set aside a judgment obtained without jurisdiction, no showing of merits is necessary, and reliance is placed upon the cases of Hole v. Page, 20 Wash. 208, 54 Pac. 1123, and Bennett v. Supreme Tent Maccabees, 40 Wash. 431, 82 Pac. 744. In each of the cases cited, a motion was made in the original case to set aside the judgment, and the lack of jurisdiction appeared upon the face of the record. The general rule, however, seems to be that, in cases where an independent action is
As to the necessity for a showing of merits, we cite the following authorities: Hill v. Lowman, 15 Wash. 503, 46 Pac. 1042; Dunklin v. Wilson, 64 Ala. 162; State v. Hill, 50 Ark. 458; Jeffery v. Fitch, 46 Conn. 601; Budd v. Gamble, 13 Fla. 265; Wiley v. Pratt, 23 Ind. 628; Garden City Wire Co. v. Kause, 67 Ill. App. 108; Gifford v. Morrison, 37 Ohio St. 502, 41 Am. Rep. 537; Gerrish v. Seaton, 73 Iowa 15; Piggott v. Addicks, 3 G. Greene (Iowa) 427, 56 Am. Dec. 547; Stokes v. Knarr, 11 Wis. *389; Harris v. Gwin, 10 S. & M. (Miss.) 563; Newman v. Taylor, 69 Miss. 670; Fowler v. Lee, 10 Gill & John. (Md.) 358, 32 Am. Dec. 172; Herbert v. Herbert, 49 N. J. Eq. 70; Gregory v. Ford, 14 Cal. 139;
The judgment of the superior court is affirmed.
Hadley, C. J., Mount, Crow, Rudkin, and Dunbar, JJ., concur.