
    SIDNEY W. DARKE, Appellant, v. ELWIN A. IRELAND, Respondent.
    Excessive Judgment not Void. — In. an action of claim and delivery the value of the property claimed was admitted by the pleadings to be S230Ü, a part of the property was admitted to belong to the plaintiff, and issue taken as to the residue; all of the property was delivered to the plaintiff in obedience to the writ, and on the trial the jury found the issues for the defendant; judgment was thereupon entered for defendant for the recovery of that portion of the property not admitted to belong to plaintiff, or in lieu thereof for the sum of $2500. The value of the property admitted tobe plaintiff’s did not appear; held,that the judgment, although erroneous, was not void.
    Motion to Vacate — Adjournment of Term. — A motion to set this judgment aside having been made after the adjournment of the term and more than a year after the judgment was rendered; held that the court had lost its power to vacate it, and that for this purpose it was not continued by the filing and serving, during the term in which the judgment was rendered, of an affidavit stating reasons for a new trial.
    Appeal from au order of tbe district court of tbe first district, denying a motion to vacate a judgment. Tbe facts are stated in tbe opinion of tbe court.
    
      Messrs. JSoge & Burmester, for the appellant.
    There is nothing in tbe answer, either allegation or prayer, by which it can be inferred that defendant is entitled to tbe possession of tbe property, or to authorize a judgment in bis favor for tbe possession of tbe same, or for tbe value thereof.
    Tbe jury returned into court tbe following verdict: “We, tbe jury, find for tbe defendant on tbe issues in tbe above entitled cause.”
    We claim that tbe judgment is not supported by tbe pleadings, and that a judgment not supported by tbe pleadings is fatally defective, unauthorized, and void: Bachman v. Sepulveda, 39 Cal. 688.
    Tbe verdict is in itself so defective that it will not support a judgment, and is therefore unauthorized and void. This verdict fails entirely to specify tbe property enumerated in tbe complaint or answer; or that tbe property mentioned in tbe judgment was tbe property of tbe defendant, or that be was entitled to tbe possession thereof, or that it was not tbe property of tbe plaintiff: Campbell v. Jones, 38 Cal. 507; Powell on Appellate Proceedings, p. 146, sec. 48, and authorities therein cited,
    This transcript shows that tbe judgment was in tbe alternative, was rendered for tbe full value of tbe property, $2,500.00 — when tbe answer waives thejright to one billiard table, or for tbe return of tbe property, without any pleading, to show that tbe defendant is entitled to either, and is therefore as absolutely void as if it bad been rendered without any pleading having been put in. There is nothing to support it, neither pleading nor verdict: Gould v. Scan-nell, 13 Cal. 431; 17 Abb. Pr. 35; 12 id. 144; Declerick’s Adm’rs v. Richley, 19 "Wend. 108; Merchants Bank v. Boyd, 3 Denio, 257; Chappell v. Chappell, 12 N. Y. 215; 17 Pick. 169.
    If a judgment is void or wholly unauthorized, a motion may be made at any time to set aside all process in tbe court from which it issued, and by order of court, refuse to permit tbe party to enforce the judgment: 14 Cal. 158; 19 Cal. 707; 31 Cal. 170; 37 Cal. 527; 17 Abbot, 35; 12 Abbot, 144.
    This being so, why should not a motion to set aside such a judgment also be entertained; we think there can be no valid reason suggested why it should not. In New York, Massachusetts, and some other States, it is held it may be done after the adjournment of the term, while California and some other States hold the contrary: Tillinghast & Sherman, Sec. 722, 723, 724; Hallett v. Righters, 13 How. 43.
    
      Messrs. Marshall & Royle, for the respondent.
    After the adjournment of the term at which the judgment was rendered, the court lost all power over the cause, and could not disturb its judgment on motion of plaintiff, except in cases provided by statute, where a party can move in six months for specified causes. 1 Estee’s Plead. (2d edition), p. 33, sec. 57; 4 Cal. 280; Snydam v Pitcher-, 3 Cal. 407, Carpenter v. Hart-, 8 Cal. 521, Shaw v. Mc-Gregor; 25 Cal. 52, De Castro v. Richardson; 28 Cal. 338, Casement v. Ringoldj 2 Cal. 582, Baldioin v. Kramer ; 6 Cal. 22, Robb v. Robb; 3 Cal. 255, Morrison v. Dapman; 9 Cal, 352, Brangu v. Chevalier; 19 Cal. 127, Sioain v. Noglee; 19 Cal. 708, Bell v. Thompson; 21 Cal. 273, Lewis v. Ridgly; 1st Woodbury & Minot 61, Jenkins v. Eldridge; 31 Miss. 153, Sagney v. Bayliss; 24 Ills. 295, Cook v. Wood; 26 Ill. 186, Smith v. Wilson; 12 Peters U. S., Sibbold v. U. S. 492; 3 Howard U. S. 413, Washington Bridge Co. v. Stewart.
    
    In this case, where the plaintiff is moving, and' there cannot be any question about personal service, the remedy by motion to set aside the judgment, could only have been used by plaintiff during the continuance of the May term of the district court of the first district. The motion was not made during that .term, and could not under any law of this Territory be made afterwards. See some of the above authorities, also: 20 Cal. 114, Bibend v. Kreutz; 19 Cal. 707, Bell v. Thompson; 10 Missouri 686, Harrison v. Slade; 32 Missouri 423, Barber v. Pacific R. R. Co.; 21 Miss. 226, Bank v. Lewis; 34 Cal. 236, McKinley v. Tuttle.
    
    The motion to set aside the judgment cannot be sustained under the 68 section of the practice act, because:
    1st. When there is no question as to service of process, the motion to set aside must be founded upon, and must show on its face that it is founded upon “mistake, inadvertence, surprise, or excusable neglect.” See said Section 68; 3 Estees Pleading (2d Ed.), p. 320, No. 1019; 3 Estees Pleading (2d Ed.), p. 321, No. 1020; 3 Estees Pleading (2d Ed.), p. 321, sec. 73. And
    2d. The motion should have been accompanied by an affidavit of merits. Such an affidavit was indispensable; and, in fact, no affidavit was filed: 34 Cal. 80, Pai-rott v. Den; 29 Cal. 422, Bailey v. Taaffe; 35 Mo, 517, Florez v. Uhrigs, Administrator.
    
   Zane, C. J.:

This is an appeal from an order of tbe court below, overruling a motion to set aside a judgment on tbe verdict. Tbe plaintiff: filed bis complaint, duly verified, claiming tbe personal property described, and alleging its value to be two thousand five hundred dollars. Tbe defendant answered, admitting tbe right and title of one billiard table to be in plaintiff, and denied that defendant bad taken or detained it, and denied tbe allegation of right in plaintiff to tbe other property, but did not deny tbe allegation of value. Defendant also justified taking tbe goods, except tbe billiard table mentioned, as United States marshal, under a writ of attachment against Bobert Burns, in fa.vor of Livingston & Co., alleged property in tbe former, indebtedness from him to tbe latter, and that plaintiff took tbe goods under legal process while defendant was so bolding them.

Section 1290 Compiled Laws, Utah, provides that every material allegation of tbe complaint, when it is verified, not specially controverted by tbe answer, shall, for tbe purpose of tbe action, be taken as true, and allegation of new matter in tbe answer, shall, on tbe trial, be deemed controverted by the adverse party. Under this statute, tbe pleadings presented an issue on plaintiff’s right, on property in Burns, on tbe justification under tbe attachment, and on tbe taking of tbe goods afterwards by tbe plaintiff. These issues were submitted to a jury, who, on tbe twenty-fifth day of May, 1883, returned tbe following verdict: “We, tbe jury, find for tbe defendant on tbe issues in tbe above entitled cause.” And tbe court, on tbe same day, adjudged that defendant recover of tbe plaintiff tbe possession o.f tbe property described in tbe complaint, except tbe billiard table, admitted in tbe answer, to belong to plaintiff, or two thousand five hundred dollars in case delivery could not be bad. On June 21,1884, tbe plaintiff filed a notice of motion to set aside tbe judgment. 1st. Because it was not supported by tbe pleadings. 2d. Because it was not supported by tbe verdict. We find no error in tbe pleadings.

Tbe property described in tbe complaint alleged to be of tbe value of two thousand five hundred dollars, included a billiard table conceded to plaintiff. Tbe value' of this table is not averred and does not appear; but assuming it to be worth something, tbe value of tbe property found for tbe defendant was less than two thousand five hundred dollars. It was error to enter up judgment for tbe full amount alleged in tbe complaint, including tbe value of plaintiff’s table, in case a delivery of tbe property could not be bad. This error, however, did not render tbe judgment void. The court having obtained jurisdiction over tbe person and over tbe subject matter, error in tbe exercise of that jurisdiction did not make tbe judgment void: Freeman on Judgments, sec. 135.

More than a year intervened between the twenty-fifth day of May, 1883, tbe date of this judgment, and tbe twenty-first day of June, 1884, when tbe notice of tbe motion to set it aside was filed, and several terms of tbe district court in which it was rendered bad intervened.

After an adjournment of a term of court at which a judgment is rendered, tbe court loses all power to set it aside on motion made at a subsequent term, in tbe absence of a statute authorizing' it to be done: 1 Estee’s Plead., 2d ed., p. 33; Carpenter v. Hart, 5 Cal. 407; De Castro v. Richardson, 25 Cal. 52.

It appears from tbe record that on June 20, 1883, twenty-six days after tbe date of tbe judgment and during tbe term at which it was rendered, tbe plaintiff filed an affidavit in which be stated certain reasons for a new trial, and on tbe twenty-seventh day of tbe same month this affidavit appears to have been served on defendant. This is all that appears on tbe record with respect to tbe motion. Tbe plaintiff urges that tbe effect of these steps towards a motion for a new trial, was to retain jurisdiction in tbe court over tbe case for tbe purpose of tbe motion to vacate tbe judgment. ' No such notice of motion as is required by section 1420 of tbe Compiled Laws of Utah, 1876, was given. Tbe failure to comply with tbe law with respect to the motion, with tbe further fact that no notice appears to have been taken of it by tbe court or counsel, authorizes tbe inference tbat tbe motion for a new trial was abandoned.

Tbe order of tbe court below appealed from is' affirmed.

Powers, J. concurred.  