Purdy v. Winters' Estate

156 P. 285 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1. There is but one question presented, and that is as to the sufficiency of the complaint It is obvious that the plaintiff’s right to recover is based entirely upon the theory that' the decree in the suit of Butts v. Purdy, supra, was erroneous and unjust. It is clearly an attack upon the determination of that suit. The principle is so thoroughly established as to require no citation of authorities that a decree of a court having •jurisdiction of the parties and subject matter cannot be attacked for fraud aliunde the record by the parties or privies.

2. All the questions which can possibly be suggested herein have been conclusively settled in this state by the able opinion of Mr. Justice Bean in the case of Morrill v. Morrill & Killen, 20 Or. 96 (25 Pac. 362, 23 Am. St. Rep. 95, 11 L. R. A. 155), which has been followed and approved by the court many times, wherein it is said that:

“A collateral attack on a judgment is any proceeding which is not instituted for the express purpose of annulling, correcting or modifying such decree. ’ ’

Applying this test to the case at bar, it is perfectly clear that it constitutes a collateral attack, and again quoting from the same authority:

“"We need not pursue the examination of this question any further; for the principle is so well settled that it is said to be an axiom of the law that, when a court has jurisdiction of the subject matter and the parties, its judgments cannot be impeached collaterally for errors of law or irregularity in practice. ’ ’

It follows that the judgment should be affirmed, and it is so ordered. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Burnett concur.