Stanford & Golden v. Bradford

McCay, Judge. 1. This case turns upon the construction to be given to section 3538 of the Code. That section provides that creditors and bona fide purchasers may attack a judgment for any defect appearing on the face of the record, or pleading, or for fraud or collusion, whenever and wherever it interferes with their rights. Does this mean that a creditor or bona fide purchaser may attack a judgment, etc., for a mere irregularity ? That, in one sense of the word, is a defect, it is true; but this section is to be taken with section 3536, which provides that judgments shall not be attacked collaterally for a mere irregularity. It was not the intent of the codifiers to change the old law. And in construing the Code this intention ought not to be assumed. The rule on this subject has long been well settled. For want of jurisdiction a judgment may'be attacked collaterally. This may also be done by a stranger if the judgment be so defective as that it is null and void. The distinction between a mere irregularity and a defect which renders the judgment void, is not very definitely established. The best marked distinction we take to be this: A mere irregularity is amendable; under our law, is cured by a judg [99] ment; and any thing, which if objected to, could have been amended, does not render the judgment void: McNamera on Nullities and Irregularities, 6. 2. Very clearly this defect, so far as the defendant served is concerned, was amendable under our law. A plaintiff may dismiss any party of several from his suit. The judgment is null against the party not served, but the plaintiff at any time before judgment might have amended by striking out the one not served. Such is the distinct provision of the Code, (section 3435,) whatever may have been the law before. This defect was therefore, under the rule, a mere irregularity, amendable, and not such a defect as renders the judgment void. It cannot, therefore, be attacked collaterally. Judgment affirmed.