Scott v. Hanford , 37 Wash. 5 ( 1905 )

Fullerton, J.

On April 19, 1897, in the superior court of King county, the respondent recovered judgment against C. T. LeBallister and the appellant, Frank Hanford, for the sum of $516.48, due upon a promissory note executed by the judgment debtors in favor of the respondent. The judgment was entered by default, on a return made by the sheriff showing personal service on both of the defendants, in King county. The judgment remained-on the records uncollected until. December 24, 1902, when the respondent began proceedings to- revive the same, causing notice of his application to be served upon the appellant, Hanford. Hanford filed an answer to the application to revive, which was stricken by the court on motion of the respondent. Thereupon he filed a motion to vacate the original judgment on the ground that no service of summons in that action had been made upon him, supporting his motion by his own affidavit to the effect that the sheriff’s return, citing such service, was false. This motion the trial court denied, and he appeals from that ruling.

The appellant argues that, inasmuch as there was no denial of his allegation to the effect that no personal service was made on him in that action, his statement in that re^ gard must be taken as true, and, being true, it conclusively appeared that the judgment was void for want of jurisdiction, and the court should have granted his motion to vacate and set it aside. But this is not the rule-. The appellant cannot attack the judgment in this way. Where it appears on the face of the record that no service has been made on the defendant, and the court must know, from a hare inspection thereof, that the judgment is void for want of jurisdiction over the person of the defendant, it will set aside the judgment, on the motion of the defendant or of any ene injuriously affected by it; hut, when the judgment is valid on its face, it is not thus subject tp attack. To set aside a judgment for matters de hors the record, it must he attacked by some one of the statutory methods for the vacation of judgments, and within the time limited by statute, or by a suit setting up some equitable ground for its vacation. A motion, supported by affidavit, filed more than five years after the entry of the judgment, is not such an attack; and the court in this instance did not err in refusing to consider the motion filed by the appellant. The order appealed from is affirmed.

Mount, C. J., Hadley, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.