after stating the case, delivered the opinion of the court.
1. The only theory on which this suit can be maintained is that the decree in the suit of Nowlan v. Stewart is void, and that a sheriff’s deed upon a sale thereunder would cast *540a cloud upon the plaintiffs’ title. There is no allegation that there was any fraud in the procurement of the decree, or that the plaintiffs were deprived of the right to make a defense thereto' on account of fraud, inevitable accident, or excusable mistake on their part. Nor is there any showing of a meritorious defense, and so' the complaint does not state any special ground for equitable interference: Handley v. Jackson, 31 Or. 552 (65 Am. St. Rep. 839, 50 Pac. 915).
2. Nor can it be sustained as a bill of review for error apparent on the face of the record, because its object is to impeach and set aside the decree entirely, and not to reverse or correct it.
3. Moreover, such a suit, if proper at all in this state, is a common-law right, and must be brought within the time allowed by statute for an appeal: Story, Eq. PL (9 ed.), § 410; 2 Beach, Mod. Eq. Prac., § 864; 2 Daniell, Ch. Prac. (6 Am. ed.), *1580; 3 Ene. PL & Prac. 583, and cases cited.
4. Now, so far as the plaintiffs George and Eckler are concerned, their only contention is that the decree as entered is erroneous because in excess of the amount demanded in the complaint. It is admitted that the court rendering the decree had jurisdiction of the subject-matter and the parties, and it is a well-settled rule that a court of equity will not enjoin such a decree for errors or irregularities ; for, as said by the editor of the American State Reports, in an exhaustive note on the subject: “Courts of equity do not exercise a revisory jurisdiction in proceedings to enjoin judgments or other decisions, but interpose only when, from some cause, not attributable to the fault of the complainant, he was not able to present his cause of action or of defense to the court or tribunal having jurisdiction of it, and his inability to so present it has resulted in his injury. In every case in which application is made to a court of equity by an independent suit for relief against a judgment or other decision, it is incumbent on the complaint (complainant) to establish (1) that *541he has lost a cause of action or of defense, or some part thereof; (2) that such loss occurred either because the court in the former proceeding or action was not competent to hear it and to grant relief thereupon, or because he was prevented from presenting it or having it properly considered, either through fraud, accident, mistake, or some other sufficient ground for the interposition of equity; and (3) that unless he secures relief in equity he will be without any adequate remedy”: Little Rock & Ft. S. Ry. Co. v. Wells, 61 Ark. 351 (54 Am. St. Rep. 216, 221, 30 L. R. A. 560, 33 S. W. 208). Rendering a judgment for a greater amount than authorized by the pleadings is an error or irregularity, within the meaning of this rule, and it is immaterial that it was by default: Chase v. Christianson, 41 Cal. 253; Gum-Elastic Roofing Co. v. Mexico Pub. Co., 140 Ind. 158 (39 N. E. 443, 30 L. R. A. 700); King v. Vaughan, 8 Yerg. 59 (29 Am. Dec. 104); Rogers v. Stokes, 87 Tenn. 294 (11 S. W. 215). A party injured by such a judgment or decree must therefore seek redress in the original action or suit (17 Am. &Eng. Enc. Law [2 ed.], 820), although, perhaps, its enforcement as to' the excess may be enjoined when the judgment debtor himself does equity by paying or tendering the amount actually due: Little Rock & Ft. S. Ry. Co. v. Wells, 61 Ark. 351 (54 Am. St. Rep. 216, 221, 33 S. W. 208, 30 L. R. A. 560). We conclude, therefore, that the plaintiffs George and Eckler are .not entitled to the relief demanded, and that as to them the suit must be dismissed.
5. This brings us to the question whether the decree is void as to the plaintiff Stewart for want of jurisdiction. There is some conflict in the authorities as to whether a court of equity will enjoin the sale of real property under a judgment or decree void upon its face. But the rule seems to be settled in this state that the court will interfere in such case when necessary to prevent a cloud on title: White v. Espey, 21 Or. 328 (28 Pac. 71).
*5426. The objections made by the plaintiff Stewart to the decree are (i) that the affidavit for the order of service of summons upon him by publication is fatally defective; and .(2) that the summons as published is insufficient, under the statute. The affidavit sets up that the plaintiff “has a cause of suit against the above-named defendants * * * to collect of defendant Oliver Stewart two seventy-five hundred dollar notes,” and “to foreclose a mortgage, given to secure the payment of said notes, on lands situate in Clatsop County, Oregon, to wit, lots 4 and 5 in section 20; the N. W. of N. W. % of section 29; also1 a portion of the donation land claim of Addison Jewett; that the particulars of the suit, claim, and description of the land are more specifically set out in the verified complaint filed in this suit, to which reference is hereby made. * * * W. E. Stewart and Lily D. Stewart are not residents of the State of Oregon, and are neither of them in. this state now, but are residents of Streator, in the State of Illinois, and their postoffice address is Streator, Illinois; * * * that each and all of these nonresidents are necessary parties to this suit, and service of summons cannot be had upon them in this state other than by publication.” Based upon this affidavit, “the verified complaint,” and “the return of the sheriff,” the court made an order for service upon Stewart and wife by publication. The specific objections to the affidavit are that it does not show that the plaintiff in the foreclosure suit had a cause of suit against the defendants named in such affidavit, and especially against Stewart, the plaintiff in this suit, nor did it show that he had or claimed any interest in the subject-matter .of the suit, or was a proper or necessary party to a suit relating to- real property in the state. In these particulars the affidavit may be defective, but the decree cannot be impeached for that reason. The statute requires that certain facts shall be made to> appear by affidavit, to the satisfaction of the court or judge thereof (Hill’s Ann. Laws, *543§ 56), before an order of publication is made; and where the affidavit tends to1 prove such facts, and the court or judge adjudges it sufficient, such adjudication is conclusive in a collateral proceeding: 17 Enc. PI. & Prac. 78; Pennoyer v. Neff, 95 U. S. 714. The defects in the affidavit referred to could have been taken advantage of by an appeal or some other direct proceeding, but do not furnish ground for an injunction restraining the enforcement of the decree.
7. The summons, as published, notified the defendants therein named that, if they failed to- appear and answer within the time specified, “for want thereof the plaintiff will take decree against you for the sale of certain lands in Clatsop County, Oregon, for the foreclosure of a mortgage executed by the defendant Oliver Stewart. Said lands are particularly described in the complaint in this suit. Said lands are situate in sections 20, 29, and the donation land claim of Addison Jewett, township 8 north, range 9 west,— and for such other relief as prayed for, and shall be deemed by the court proper.” The statute requires that the summons published shall contain, among other things, “a succinct statement of the relief demanded” (Hill’s Ann. Laws, § 56), and the contention is that the summons in this case does not comply with such provision. This statute, as the language imports, does not require the summons to contain a full statement of the relief demanded in the complaint, but simply a concise or summary statement thereof; and in our opinion the summons in question is sufficient, under the statute: 16 Am, & Eng. Enc. Law, 815, 816, and citations. The decree from which the appeal was taken must therefore be affirmed, and it is so ordered. Affirmed.
AI-generated responses must be verified and are not legal advice.
