Louisville & N. R. Co. v. Tally
83 So. 114
Ala.
1919
Check Treatment
ANDERSON, C. J.

[1-4] The proposition cannot be questioned that a judgment rendered by a court without jurisdiction of the subject-matter or the parties is coram non judice. It is a mere nullity, and if the want of jurisdiction appears on the face of the record, even of a court of general jurisdiction, it is open to collateral attack. “There is a well-recognized distinction between the presumption to be given the judgment of a court of limited or special jurisdiction and the judgment of a court of general jurisdiction. It is the well-established general rule that, when a domestic judgment of a court of superior and general jurisdiction acting within the ordinary scope of that jurisdiction is assailed collaterally, every presumption is made in favor, not only of the proceedings, but of the court’s jurisdiction, both as regards the subject-matter and of the parties, unless the contrary affirmatively appears on the face of the record itself. The presumption as to the validity does not, however, extend to a case where it appears from the record that the court was without jurisdiction of either the person or the subject-matter. If a want of jurisdiction appear on the face of the record, the judgment or decree is void and will be treated as a nullity, and is subject to collateral attack.” 15 R. C. L. § 358, p. 880. “According to the common-law rule, adhered to at the present time in most of the states, the presumption in favor of the jurisdiction of a court.of general jurisdiction is conclusive and its judgment cannot be collaterally attacked where no want of jurisdiction is apparent of record. Whenever the record of such a court is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that whatever ought to have been done was not only done but that it was rightly done. So where the judgment contains recitals as to the jurisdictional facts, these are deemed to import absolute verity unless contradicted by other portions of the record. Consequently,' such a judgment cannot be collaterally attacked in courts of the same state by showing facts aliunde the record, although such facts might be sufficient to impeach the judgment in a direct proceeding against it. The validity of a judgment when collaterally attacked must be tried by an inspection of the judgment roll alone, and no other or further evidence on the subject is admissible, not even evidence that no notice had been given.” 15 R. C. L. § 373, p. S93, and numerous cases cited in note; Black on Judgments, § 270; Freeman on Judgments, §§ 130, 131. The courts of some states have, however, departed from the common-law doctrine, and take the view that want of jurisdiction in the court rendering the judgment may be established by extrinsic evidence, not only where the record is silent on the subject of jurisdiction, but even to contradict recitals of jurisdictional facts found therein; but Alabama has, by a long line of decisions, followed the weight of authority in adhering to the common-law doctrine. White v. Simpson, 124 Ala. 238, 27 South. 297; Peavy v. Griffin, 152 Ala. 256, 44 South. 400; Carr v. Ill. Cent. R. R., 180 Ala. 165, 60 South. 277, 43 L. R. A. (N. S.) 634; Breeding v. Breeding, 128 Ala. 412, 30 South. 881; Winter v. London, 99 Ala. 263, 12 South. 438; Winkler Brokerage Co. v. Courson, 160 Ala. 374, 49 South. 341.

[5] The judgment of the federal court, as set out in the defendant’s special amended plea 2, was not void upon its face, the court had jurisdiction of the subject-matter, and the judgment recited the appearance and action of counsel for the parties. The plaintiff contended, however, that the appearance and action of counsel was unauthorized and that she was not a party to the judgment. If this were true, then the judgment would be unquestionably void as for want of proper parties; but this fact can only be shown by proof dehors the record, and which is not Xiermitted upon collateral attack. As was said by this court in the case of Winkler Brokerage Co. v. Courson, 160 Ala. 374, 49 South. 341, speaking through Simpson, J., in discussing the rights and remedies of parties against unauthorized appearances and actions of attorneys:

“It is also clear from these authorities that, when a judgment has been rendered by confession, by an unauthorized attorney, or attorney in fact, the remedy is either by direct application to the court which rendered the judgment, or by bill in equity.” _

*373 It is therefore evident that, if the judgment in the federal court is void because there was no appearance by the plaintiff and that the appearance of counsel as recited in the judgment was i unauthorized or fraudulent, said court would no doubt have the power to vacate the judgment upon direct attack by motion or bill in equity. But this plaintiff cannot let said judgment stand unmolested in said court and attempt to avoid the effect of same upon a collateral attack dehors the record.

[6] It is true the judgment in question was rendered by the federal court, but it is a court of this state, and to every intent and purpose its judgment is what' is termed a “domestic judgment” and should be accorded the same verity as .one rendered by the courts of general jurisdiction of this state. Black on Judgments, § 285; Pearce v. Winter Iron Works, 32 Ala. 68; Riverside Cotton Mills v. Ala. Mfg. Co., 198 U. S. 188, 25 Sup. Ct. 629, 49 L. Ed. 1008; 15 R. C. L. § 364, p. 8S6; Reed v. Vaughan, 15 Mo. 137, 55 Am. Dec. 133, and note. See, also, note 32 Am. St. Rep. 213. We think that the rule was well stated in the case of Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N. W. 938, wherein it was said that a judgment of a federal court in this state cannot be collaterally attacked in a state court, unless a want of jurisdiction appears on the face of the record; the theory being that it stands on the same footing as a judgment of a domestic court of record. Attention is called by counsel for appellee to 23 Cyc. (d) p. 1600, and note 73. It must be observed that, if the text and certain cases in said note oppose this holding, the said note cites the United States and Alabama courts as contra.

The trial court erred in not sustaining the defendant’s demurrer to replications 2 and 3 to its amended plea 2.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.