Hanson v. Wolcott

The opinion of the court was delivered by

Horton, C. J.:

It is conclusively shown in this action, within the decision of Bond v. Wilson, 8 Kas. 228, that the *209 judgment of the court below was rendered against the plaintiff in error without any service of summons upon him, and that the judgment is void, as the district court had no jurisdiction of the person of said Hans Hanson. Under these circumstances, the district court erred in refusing to vacate said judgment on the motion of plaintiff in error. Counsel for defendant in error contend, that the motion to vanate the void judgment was properly overruled, because the court below was not advised of any valid defense. It is true, that section 572 of the civil code provides that a judgment shall not be vacated on motion, or petition, until it is adjudged that there is a valid defense to the action; but this section in the nature of things does not apply to judgments rendered by a court having no jurisdiction of the person of the defendant, and where the judgment, so called, is a nullity. Independent of sections 572 and 575, the court has the power to vacate void judgments. The addition of the clause in section 575, gives no additional power to the court. It simply enunciates a power it always possessed. The previous decisions of this court fully sustain this conclusion, if any authorities need be cited in favor of so salutary a determination. Foreman v. Carter, 9 Kas. 674; Chambers v.King Wrought-Iron Bridge Manufactory, 16 Kas. 270.

The order of the district court, overruling the motion to set aside the judgment, will be reversed.

All the Justices concurring.