On Nоvember 13, 1928, upon notice of motion for judgment in the Circuit Court of Wood County, George P. Ashburn, Elnora Ashburn, Earl C. Linger and Leora V. Linger obtained a judgment against K. B. Stephenson for $6,773.77. By assignment George P. Ashburn became owner of the interests of the Lingers in the judgment. Various attempts were made by the Ashburns to collect the judgment, by execution and otherwise, without success and, on August 29, 1949, a summons was issued directing Stephenson to appear before а commissioner in chancery to make answer to interrogatories. Before the hearing Stephenson instituted a chancery proceeding praying that the Ashburns be enjoined from further attempting to collect the judgment, contending that the judgment was void for the reason that after he had demanded a jury trial of the issue in the notice of motion for judgment proceeding a default judgment had been entered against him. Ashburn answered the bill of complaint and set up a claim for affirmative relief, alleging that the judgment was not, in fact, a default judgment, but that the action of the clerk in entering the judgment as a default judgment was a clerical mistake. The prayer of the cross-bill was that the record of the notice of motion for judgment proceeding “be changed and corrected to show the presence in court at the time of the heаring of said notice of motion for judgment, of the said K. B. Stephenson and his attorney, * * The circuit court sustained a demurrer to the answer and cross-bill, held the judgment void and granted the injunction. This Court granted an appeаl to George P. Ashburn.
An order entered in the notice of motion for judgment proceeding discloses that on the return day of the notice, May 19, 1928, Stephenson appeared and “filed counter-affidavit and demurrеd to the notice filed in this cause, and moved the Court to quash the same, which motion *143 being argued by counsel and maturely considered by the Court is overruled. Thereupon defendant for plea says he did not assume upon himself in manner and form as in plaintiffs’ notice alleged, and of this he puts himself upon the country and the plaintiffs doth the like and issue thereon is joined.” Nothing further was done in the proceeding until the regular October, 1928, term of court, at which term on November 13, 1928, the following order was entered: “This day came the plaintiff, by counsel, and the defendant though duly summoned and being solemnly called, came not. Thereupon the Court in lieu of а jury proceeded to examine evidence and affidavit filed by plaintiff, and ascertain the amount, if any, plaintiff is entitled to recover in this action, and doth ascertain the same to be $6773.77, with interest thereоn from April 27th, 1928, until paid. Therefore it is considered by the Court that the plaintiffs recover against the defendant said sum of $6773.77 with interest thereon as aforesaid, together with their costs in this behalf expended.” There exists no rеcord, quasi record or memorandum indicating any intention of the court to enter any judgment other than the one just quoted.
Stephenson contends that the judgment is void for the reason that, after having filed a pleа of the general issue and after having put himself upon the country, the court had no power or jurisdiction to enter a judgment in the proceeding, in absence of a waiver of a trial by jury, entered of recоrd. The position of Ashburn is that, though the judgment, on the face of the record, may be invalid, the invalidity results from a clerical mistake of the clerk of the court, and that the mistake may be corrected by a nunc pro tunc order, with the aid of parol evidence.
The cоntrolling question relates to the validity of the judgment under attack. If it is void little more need be said, inasmuch as a judgment void for the reason that the court entering it had no jurisdiction to do so can not be considered аs having resulted from a clerical mistake and can, in no manner, be corrected by a
nunc pro tunc
order.
*144
A void order is not a verity. It can be attacked at any time, directly or collaterally.
Matheny
v.
Greider,
Section 13 of Article III of the State Constitution provides: “In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be рreserved; * * In
Matheny
v.
Greider, supra,
Point 1, syllabus, this Court held: “The filing of a plea of the general issue is tantamount to demanding trial of the action by jury.” Of course a trial by jury may be waived, but the waiver must appear of record. Chapter 116, Seсtion 29, 1923 Code; Code, 1931, Chapter 56, Article 6, Section 11;
Lipscomb
v.
Condon,
It is clear, therefore, that the Constitution preserved unto Stephenson the right to a jury trial; that he demanded such a trial; that no waiver thereof was entered of record; and that on the face of the record he was dеnied a jury trial. In the Matheny case, Point 2, syllabus, this Court held: “When a trial by jury has been demanded in an action involving more than twenty dollars, the impaneling of a jury to try the issue is a jurisdictional re *145 quirement, and a judgment rendered without complying with it is void.” In the opinion in the Matheny case the Court stated: “Section 13, article III, of our Constitution gives the absolute right to trial by jury when the matter in controversy exceeds twenty dollars, provided that right is asserted. We believe that this right would not be adequately protected were we to hold that it not being accorded in a proper case was merely error that would have to be directly corrected. The language of thе constitution is mandatory and the right itself is fundamental. We are therefore of opinion that the question is jurisdictional. * *
In 11 M. J., Judgments and Decrees, Section 145, it is stated:
“As mentioned previously, a void judgment is no judgment at all, but a merе nullity and may be assailed in any court, anywhere, whenever any claim is made or rights asserted under it. It neither binds nor bars anyone, and all proceedings under it are ineffectual to confer title, or afford protеction to anyone. And no act of ratification can impart vitality to it. Its payment may be resisted by other creditors interested in the fund sought to be subjected, and who would be prejudiced thereby.
“If the judgment is null, no action, on the part of the plaintiff, no inaction upon the part of the defendant, and no resulting equity in the hands of third persons, can invest it with any of the elements of power or vitality. A void judgment may be attacked еither directly or collaterally. * * See Jennings v. Judge, supra.
Ashburn contends that the record of the notice of motion for judgment proceeding may be corrected to show that Stephenson agreed and consented to the entering of the judgment; in other words, that the judgment was one by consent, and not one by default. He offers parol evidence only for that purpose. Assuming the judgment to have resulted from a mere clerical error, the mistake would necessarily have to appear upon the face of the record before it could be corrected. What Ashburn seeks to have
*146
done here is not a correction оf a clerical error shown of record, but the entry of a new and different judgment. See
Stannard Supply Co.
v.
Delmar,
In
Stannard Supply Company
v.
Delmar, supra,
Point 2, syllabus, this Court held: “In this state the rule is that ‘a
nunc pro tunc
order can only be made upon showing some entry or memorandum upon the records or
quasi
records of the court, and that parol evidence of the rendition of the judgment and its terms cannot be received, at least until such entry or memorandum is produced.’ ” See
State
v.
Underwood,
We are not unmindful that some authorities contend for what they believe to be a more liberal view, which
*147
would permit the correction of judgments and decrees to be made, after the term at which entered, upon extrinsic evidence, although the error sought to be corrected be not shown or indicated by the record or in any memorandum of the court. See
Jones
v.
Gallagher,
Appellant further contends that the allegations of the cross-bill are admitted to be true by the demurrer therеto, and that it must be considered, as having been established in this proceeding, that the judgment attacked was entered by agreement and consent of Stephenson. We think there is no merit 'in the contention. The answеr and cross-bill admits the record of the notice of motion for judgment proceeding to be as set out in the bill of complaint. No dispute of facts exists as to what the record shows. Questions of law as to the еffect of the record only are raised. Demurrers, of course, do not admit rules of law. “A demurrer, while admitting as true all facts properly pleaded, does not admit conclusions of law from the facts in the рleading.” Point 1, Headnotes,
Trumbo
v.
Fulk,
Finding no prejudicial error in the decree of the Circuit Court of Wood County, it is affirmed.
Affirmed.