Wilson v. Birt ( 1925 )

Counsel for the defendant in error insist that the attack by answer of the defendant below upon the previous judgment was a collateral attack, and that a judgment valid on its face is not subject to collateral attack even for fraud.

It seems to have been the opinion of this court, at one time at least, that an attack upon a judgment by answer in another suit was not collateral (Hallack v. Loft, 19 Colo. 74,34 P. 568, and Wilson v. Hawthorne, 14 Colo. 530,24 P. 548, 20 Am. St. Rep. 290), though the Court of Appeals held otherwise (Rawles v. People, 2 Colo. App. 501,31 P. 941; Harter v. Shull, 17 Colo. App. 162,67 P. 911). It is not questioned that a bill may be filed to impeach a judgment fraudulently obtained, and since under the code any equitable defense may be set up in the answer, it is hard to see why a judgment may not be attacked in that way. Hallack v. Loft and Wilson v. Hawthorne,supra; Caswell v. Caswell, 120 Ill. 377, 11 N.E. 342;Evans v. Woodsworth, 213 Ill. 404, 72 N.E. 1082.

However this may be, the weight of authority supports the proposition that where fraud goes to the method of acquiring jurisdiction, the judgment is subject to collateral attack for the fraud. 23 Cyc. 1098; 34 C. J. 566; Hallackv. Loft, supra; French v. Thomas, 252 Ill. 65, 96 N.E. 564;Phelps v. Benson, 161 Pa. 418, 29 Atl. 86; Justice v.Georgia, etc., Co., 109 Va. 366, 63 S.E. 1084; Pratt v.Griffin, 223 Ill. 349, 79 N.E. 102; Lucy v. Deas,59 Fla. 552, 52 So. 515; Corvin v. Com., 131 Va. 649,108 S.E. 651.

In the present instance the fraud charged is in the method of acquiring jurisdiction. The question of the rights of a purchaser of a title depending on a judgment obtained by such a fraud is not before us.

Rehearing denied.