82 W. Va. 153 | W. Va. | 1918
This suit is prosecuted for the purpose of cancelling and annulling certain deeds which it is claimed constitute clouds upon the plaintiff’s title to the coal in a certain tract of land
The bill proceeds upon the theory that the deed made by the guardian, and all deeds made subsequently thereto, having that deed for their basis, are absolutely void upon the alleged ground that no notice was given to the infants of the filing of the petition to sell their land, which fact is sought to be made to appear from a copy of the order of the county court appointing the petitioner guardian of the infants ea-
In this case the court rendering the decree, which it is now claimed was void and may be disregarded, found as matter of fact that process had been served as provided by law." This is not a direct proceeding to review that decree and to set the same aside. It is a collateral attack thereon. It would proceed regardless of the decree and simply say that because of lack of jurisdiction in the court its decree may be ignored. We are of the opinion that this cannot be done. We think that in a collateral proceeding like this the recitals of finding of fact upon which jurisdiction depends are conclusive and cannot be controverted by any evidence outside of the record of the proceeding in which the decree or judgment was entered. Of course,,if the record of that proceeding itself disclosed a lack of jurisdiction the case would be quite different, but so long as such lack of jurisdiction does not appear from such record the jurisdiction of the court to enter the decree cannot be questioned in a collateral proceeding.
It follows that the decree of the circuit court of Wetzel county overruling the demurrer mil be reversed, the demurrer sustained, and the cause remanded to the circuit court of
Reversed, and remanded.-