People v. Harrison

Works, J. This is an appeal from an order made vacating a judgment on motion. The judgment was vacated by the court below. The order was reversed in Department One (People v. Harrison, 22 Pac. Rep. 1143), and a rehearing granted. The ground upon which it was sought to vacate the judgment was, that the summons was not personally served on the defendant, and was published without the aiiidavit for such publication required by the statute. The motion to vacate was made sixteen years after the judgment was rendered. The evidence shows that all the papers in the original action, upon [608]which the judgment was founded, were lost, and the motion was attempted to be sustained on parol testimony-alone. There are cases decided by this court which recognize the right of a defendant, or his successor in interest, to vacate a judgment on mere motion after the time limited by statute. (People v. Mullan, 65 Cal. 396; People v. Pearson, 76 Cal. 400; People v. Greene, 74 Cal. 400.) But as was said in People v. Goodhue, 80 Cal. 200: “We know of no provision of law which can be held to authorize the vacation of a judgment on a mere motion after so long a time.” Of course, a judgment void on its face may be attacked at any time, directly or collaterally, hut when the attempt is made to vacate the judgment by a proceeding in court for that purpose, it should be done by bringing an action as in other civil cases, that the opposing party may be regularly served with summons, and issues formed and the case regularly tried.

But it is unnecessary for us to hold in this case that a judgment void on its face cannot be vacated on a mere motion, and as the cases cited hold that it can be, we content ourselves with saying that an action regularly brought is preferable, and should be required. (Bell v. Thompson, 19 Cal. 706.) The cases referred to carefully limit this right to vacate in this informal way to judgments void on their face. Thus in People v. Greene, 74 Cal. 400, it is said: “A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its want of vitality, is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant.....Section 473 of the Code of Civil Procedure is intended to- apply to cases where judgment has been taken against a party by • mistake, accident, surprise, or excusable neglect; to cases in which the moving party must move upon evidence dehors the record; to cases in which the relief to be granted is largely in the sound discre