Gerrish v. Hunt

X. JUDGMENT without notice: action to set aside and to enjoin execution: petition and demurrer. I. The petition alleges that in 1870 defendant Hunt recovered a judgment against plaintiff and another, and that plaintiff was not served with notice of any character, and had' no knowledge of the existence of the judgment until after the execution was issued which he seeks to enjoin, and that he has a good defense to the cause of action *683on which the judgment was rendered, in that it is barred by the statute of limitations. The petition does not admit indebtedness to the defendant, or that he executed or is bound by the promissory note upon which judgment was rendered.

II. The demurrer was erroneously sustained. A judgment rendered without service of notice, or other process required by law, is Amid for Avant of jurisdiction in the court rendering it. This familiar rule of the law need not be supported by citation of authorities. Such a judgment will be set aside and process thereon enjoined by chancery. But this relief will not be granted if it appear that the party holding such void judgment has a valid claim whereon it was rendered, to which there is no defense. In the case before us, the petition, which is admitted by the demurrer, alleges the invalidity of the judgment, but neither directly nor inferentially admits the existence of the indebtedness for which it was rendered. The case, as presented by the petition, shows the invalidity of the judgment without showing the existence of the debt for Avhich it was rendered.

2 §e?™asUoondition‘ III. Counsel for defendant insist that plaintiff can have no relief against defendant until he offers to pay or pays the due upon the note upon which judgment was rendered; that he cannot ask for equity until he does himself Avhat equity demands. But, as • we have pointed out, the case presented, by the petition does not require plaintiff to do anything, for it does not appear therein that the plaintiff is indebted to defendant.

The foregoing consideration disposes of all questions argued by counsel. The cause will be remanded for proceedings in accord with this opinion.

Beveksed.