Molloy v. Union Transfer, Moving & Storage Co.

Rudkin, C. J.

(dissenting) — I dissent. The motion to vacate the original judgment was based on the following grounds, specifically set forth in the motion:

“(1) That said judgment is void for failure of the above entitled court to obtain jurisdiction over said defendant.

“(2) That the said judgment was obtained by a fraud practiced by the successful party, plaintiff herein, by neglecting and failing to serve said defendant with the summons and complaint in said action.”

It will thus be seen that want of jurisdiction in the court to render the judgment was the sole ground of the motion to vacate, and when that question was resolved in favor of the jurisdiction, the motion to vacate failed.

The judgment should be reversed, with directions to deny the motion to vacate and to reinstate the original judgment.

Gose and Parker,, JJ., concur with Rudkin, C. J.