Larimer v. Krau, 8776.

Docket NºNo. 8776.
Citation57 Ind.App. 33, 105 N.E. 936
Case DateJuly 02, 1914
CourtCourt of Appeals of Indiana

57 Ind.App. 33
105 N.E. 936

LARIMER et al.
KRAU, County Treasurer.

No. 8776.

Appellate Court of Indiana, Division No. 1.

July 2, 1914.

On rehearing. Overruled.

For former opinion, see 103 N. E. 1102.


Appellants in their petition for a rehearing earnestly contend that the judgment should be reversed, and base their contention on two propositions: (1) That the suit is a direct, and not a collateral, attack on the judgment of the board of commissioners; (2) that the allegations of the complaint that no notice was given or served on appellants make the complaint good, and authorized parol proof to dispute the recitals of the record, which show that due notice had been served on all landowners affected who had not joined as petitioners.

[1] There is no basis in our decisions for the first contention. The cases cited do not support the proposition, and are mostly cases which show a direct, and not a collateral, attack upon the judgment. The case of Frankel v. Garrard, 160 Ind. 209, 66 N. E. 687, mainly

[105 N.E. 937]

relied on, was a suit to set aside a judgment on the ground of fraud in its procurement, and incidentally to enjoin the sheriff from enforcing an execution for its collection.

The court held that the procurement of a false return by one of the parties to the suit was a fraud upon the other party “and the court in which the suit was pending.” The court also held that (160 Ind. 214, 66 N. E. 689):

“The impeachment of the judgment by an action to set it aside and enjoin its collection for fraud in its procurement was a direct, and not a collateral attack.”

The original opinion mentions the fact that our decisions show considerable discrepancy of expression and some difference of opinion as to the conditions under which the want of jurisdiction of an inferior court may be shown by proof dehors the record.

In numerous decisions it has been declared in general terms that a void judgment is subject to collateral attack, and that one that is only voidable because of errors and irregularities is invulnerable to such attack. The record of a court of general jurisdiction need not affirmatively show the jurisdictional facts, as it will be presumed that such court had jurisdiction of the persons and of the subject-matter of the suit, unless it affirmatively appears from the record itself that it did not have such jurisdiction.

The rule as to inferior courts, boards of commissioners, and like tribunals is that the record must show affirmatively that such court had jurisdiction of the subject-matter and of the persons of the parties to the suit or proceeding, before any presumptions are indulged in favor of the judgments of such courts.

There is no doubt or uncertainty as to the position of our courts of last resort on the foregoing general propositions, but the decisions are not all clear and definite with reference to the right to dispute by parol testimony the recitals of the record of such inferior courts which show jurisdiction, or that the court had passed on the jurisdictional facts and proceeded to exercise its jurisdiction in the suit or proceeding before it.

[2] The judgment of a court of record is not void, unless the thing lacking or making it so is apparent on the face of the record. Brooks v. Morgan, 36 Ind. App. 672-677, 76 N. E. 331;Smith v. Hess, 91 Ind. 424, 425;Earle v. Earle, 91 Ind. 27-42;Martin v. Neal, 125 Ind. 547-553, 25 N. E. 813;Kingman v. Paulson, 126 Ind. 507-510, 26 N. E. 393, 22 Am. St. Rep. 611.

In Smith v. Hess, supra, the court say:

“Some confusion has been brought into the cases by the use of the terms ‘void’ and ‘voidable,’ as applied to judgments. Judgments are frequently spoken of as void, because they may be so declared in a proper proceeding. The general and correct rule, as established by the weight of authority, is that a judgment by a court of competent jurisdiction is not void, unless the thing lacking or making it so is apparent upon the face of the record. If the infirmity do not so appear, the judgment is not void, but voidable. One is a nullity, a mere brutum fulmen, and may be so treated by all persons, in collateral as well as direct attacks.”

If the records of a board of commissioners, or like tribunals, show that the court passed on the jurisdictional facts, and either expressly or by necessary implication held them to be sufficient, under the foregoing rule, its judgment is not void, in the sense that it is vulnerable to collateral attack, unless it may be ascertained from the whole record that the court did not have or acquire jurisdiction in the particular suit or proceeding.

The pleadings, summons, notices, and other files in the case or proceeding constitute a part of the record, and may be resorted to to ascertain the facts essential to the court's jurisdiction. Mitten v. Caswell-Runyan Co., 52 Ind. App. 521-525, 99 N. E. 47.

In a direct attack the judgment of an inferior court may be assailed upon the jurisdictional facts by parol, or other proof of facts dehors the record, but the decided weight of authority in this state, and the better reason, establish the rule that in a collateral attack the recitals in the record of such court which either directly or by necessary implication show jurisdiction, or that the court passed on the jurisdictional facts, and held them to be sufficient, cannot be disputed by facts dehors the record.

In Gold v. Pittsburg, etc., Co., 153 Ind. 232, on page 246, 53 N. E. 285, on page 290, the court say:

“Where the want of jurisdiction of an inferior court is not apparent on the face of its proceedings, it follows, as a general proposition, that its judgment, on the question of its...

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