Mueller v. Reimer

Mitchell, J. We think that a judgment absolutely void for want of j urisdiction appearing on its face, may be set aside on the motion of any person who, although not a party to the action, has an interest in the property upon which it is a cloud. Such a motion is not, strictly speaking, a proceeding in the action, but an application to have the records purged of an unauthorized and illegal entry. Hervey v. Edmunds, 68 N. C. 243; Blodget v. Blodget, 42 How. Pr. 19; Mills v. Dickson, 6 Rich. Law, 487; Milnor v. Milnor, 9 N. J. Law, 93; Hunter v. Cleveland Stove Co., 31 Minn. 505, 511, (18 N. W. Rep. 645.) But such a practice is liable to encourage the inter-meddling of strangers, and is subject to the possible danger of affecting the rights of parties not before the court, and therefore to be indulged in very cautiously. Moreover, one not a party to the action is not entitled as a matter of right to such relief. The granting of it is a matter wholly within the sound discretion of the court. There is no necessity for granting such relief, for a judgment void on its face can neither affect, impair, nor create rights, and is always and everywhere open to collateral attack. In this case the appellants, in their affidavits upon which they made their motion, allege various facts to show that they have succeeded to the interests of the deceased defendant, Reimer, in the property sold on this alleged void judgment, all of which would have to be established by evidence extrinsic to the record in the action. It also appears that there is now pending an action commenced by them against Stanford Newel, (who has succeeded to the title of the purchaser at the execution sale,) to determine his adverse claim to this property, and which involves the very issue sought to be determined by this motion. Under such circumstances, the court very properly refused to try these questions upon ex parte affidavits, and relegated the appellants to their pending action against Newel, where all these matters can be determined upon evidence regularly adduced upon issues tendered and joined in the action already begun for that very purpose. Order affirmed.