
    Gifford v. Morrison.
    A court of equity will not decree a judgment lien to be invalid on tbe ground of tbe want of legal notice to tbe defendant, where tbe plaintiff bas not been guilty of misconduct, and tbe defendant bad actual knowledge of tbe pendency of tbe action, unless a meritorious defense to tbe action be shown.
    Error to the District Court of Cuyahoga County.
    The plaintiff in error, Mary L. Gifford, filed the original petition against the defendant in error, David Morrison, in the Court of Common Pleas of Cuyahoga county, to quiet her title to certain real estate in her possession, against a certain judgment lien thereon, which the defendant claimed to own and hold. The real estate in question was purchased by the plaintiff from one Allaire, on February 14, 1876. On December 28 previous, the defendant commenced an action against Allaire before a justice of the peace in said county, to recover a claim for $129.56, and caused a summons to be issued, returnable December 31, at the hour of 9 o’clock a.m., which was delivered to a constable for service on the day of its issuance. A copy of the summons so issued was delivered by the constable to Allaire on the afternoon of its return day. Before the service on Allaire, however, the return day of the summons, without the knowledge of the justice, or of the plaintiff Morrison, was changed from December 31, 1875, to January 3, 1876. The summons so altered was returned by the constable, indorsed, “Served on the defendant Allaire, December 31,1875.” On January 3d judgment was rendered by the justice in favor of Morrison against Allaire by default, for the amount claimed, whereupon a transcript of said judgment was filed in the clerk’s office of said county, which constitutes the lien complained of in the original action. The petition in the original action, in,addition to the above facts, alleged that no other summons in said action was issued by said justice, and that no action was had by said justice, or entry made upon his docket, between the day said summons was issued and the time said judgment was rendered.
    The court of common pleas sustained a demurrer to the petition and dismissed the action, which judgments were affirmed by the district court.
    
      E. Sowers, for plaintiff in error :
    We claim that the justice, when he rendered judgment against Allaire, had obtained no jurisdiction over him, and that the judgment is void ; not voidable, but void. We claim that jurisdiction of the person is essential to the rendition of a valid personal judgment, and that if it appears that the court rendering judgment had no jurisdiction of the person its judgment is void, no matter how correct in form its proceedings may have been. To hold otherwise would be to endue judgments in such cases with a sanctity which they never hitherto possessed. Sections 7, 11 and 14 of the act prescribing the mode of procedure before justices of the peace, provide for the commencement of actions and service of summons. As therein provided, actions are commenced by summons or by the appearance and agreement of parties without summons. It is clear that this action was not begun by the appearance and agreement of the parties without summons. Was it begun by the issuing and service of summons? We think not. Because (1) the summons issued by the magistrate was not served by copy delivered to the defendant until the afternoon of the day on which it was made returnable; and (2) because the summons issued by the justice was changed materially before service thereof, and without his knowledge or consent, and as a legal summons was thereby destroyed; (3) because no summons was ever served on the defendant in the case in which judgment was in fact rendered; and (4) because no summons was in fact issued by tbe justice in the case in which judgment was rendered. We think the provisions of section 211 of the same act applies to summons changed without authority after they are issued by the justice, as well as to summons in which a blank is left to be filled up by another. The policy of the law is that the summons shall not be changed after it is issued by the justice. The provisions of the sections 7-11 and 14 of the act regulating procedures before justices, are intended to prescribe the manner in which justices may obtain jurisdiction of the person, and no other method of obtaining that jurisdiction exists than that therein prescribed. We insist that in this case none of these methods were pursued, and that, consequently, no jurisdiction of Allaire was obtained, and therefore the judgment is void. Sheldon v. Newton, 3 Ohio St. 494.
    It is settled by the decision in this case that one of the fundamental conditions which must exist in order to give jurisdiction over the person, is that the “person . . . . has been properly brought before the tribunal to answer the charge therein contained.” To be properly “ brought before the tribunal ” can mean neither more nor less than that the party defendant has been brought before the tribunal in accordance with some one of the methods prescribed by law. And unless this is true in fact no jurisdiction has been obtained over the person of the defendant. Buchanan v. Roy, 2 Ohio St. 251.
    “Want of jurisdiction of the cause equally as much as want of jurisdiction of the person, may make a judgment .... void.” Id. 252.
    The point here is that want of jurisdiction may make a judgment void; not voidable, but a nullity. Moore v. Robison, 6 Ohio St. 320.
    If jurisdiction was obtained in this case it must have been obtained by delivering to Allaire a copy of the summons as originally issued by the justice, and yet this summons was not served till two hours after the time when the life of the summons became extinct. The law in plain terms requires the summons to be served at least three days before the time for appearance; this plain provision of the law was not observed, and lienee the judgment cannot be sustained, unless this requirement is immaterial. We think the law in this respect was intended to be observed, and that in a case where its provisions have been clearly violated a judgment would be void. Pennywit v. Foot, 27 Ohio St. 600, 616-618; Adams v. Jeffers, 12 O. R. 272, 3.
    "Wo submit that the above cited cases. clearly show that where the law prescribes the course of procedure in order that the court may obtain jurisdiction of the person or thing, that course must be pursued, otherwise the judgment is void. Jurisdiction must first be obtained—it is an essential foundation fact, without which there can be no valid judgment. If jurisdiction be obtained and all the subsequent proceedings are wrong, the judgment may be erroneous, but is not void ; it will remain in full force and effect till reversed by a proper proceeding. And the distinction between void and voidable judgments lies in the fact whether jurisdiction was or was not obtained over the person or the thing by the court rendering judgment.
    
      Birney & Hobart, for defendant in error :
    There is no allegation in plaintiff’s petition that the said Allaire had any defense. There is no allegation that he was damaged by the judgment, nor that fraud or deceit was used in obtaining judgment. No allegation that this plaintiff-was an innocent purchaser; on the contrary, it will not be denied by opposing counsel, but that she knew of the lien at the time she purchased, and did so purchase with the expectation of setting it aside. No good reason has been assigned by plaintiff in error, why the judgment obtained by defendant in error does not embrace his rights.
    1st. However summary or irregular, the judgment of a competent tribunal can not be treated as a nullity. It can only be re-investigated by writs of error or certiorari.
    
    2d. A judgment of a court of competent jurisdiction can not be impeached collaterally. 1 Ohio, 321, 430; 4 Ohio, 138, 327; 3 Ohio, 305 ; 5 Ohio, 522; 8 Ohio, 107; 12 Ohio, 253 ; 11 Ohio, 310; 15 Ohio, 445 ; 16 Ohio, 27, 272; 17 Ohio, 409; 18 Ohio, 323; 20 Ohio, 34; 6 Ohio St., 303; 10 Ohio St. 29 ; 24 Ohio St. 432 ; 30 Ohio St. 53; 48 Inch 397; Cent. L. J., May 30, 1879, p. 434.
   McIlvaine, J.

For aught that appears on the record before us, the plaintiff had actual knowledge of all the facts stated in her original petition, at the time she purchased the property, as well as constructive notice of the existence of the judgment and lien of the defendant. It is not pretended that any ground for equitable relief exists in her favor, which could not, with equal right, be asserted by Allaire, her grantor; and we think it is quite clear, that, upon the facts stated, equity would not afford relief to Allaire, the judgment debtor.

That errors and irregularities intervened in the action and proceedings before the justice must be conceded, but whether they appeared on his record is not shown. If they do appear on his record, the judgment, no doubt, might have been reversed on proceedings in error. And the rule is,’that equity will not afford relief, where there is a plain and adequate remedy at law. Allaire had knowledge of the pendency of the action before the justice. True, the notice by summons was not regular ; but it informed him that the action had been commenced, and he was thus afforded an opportunity to correct the irregularity on motion, to the justice, or by petition in error if the irregularity appeared on the face of the record. Rut whether the irregularity appeared of record or not, he could have no standing in a court of equity without an allegation of meritorious defense. Having failed to exercise diligence in seeking redress at law, equity would not set aside the judgment until it was made to appear that the result should be other or different from that already reached. No such showing is made in the case before us.

We do not deny that equity, under some circumstances, will restrain the execution of a void judgment, without an allegation of defense, as, for instance, when the fraud or misconduct of the plaintiff in obtaining the judgment is shown; but such jurisdiction is never exercised without such showing, where the judgment is voidable merely, or where, though absolutely void, it appears to be regular on the face of the record.

No misconduct is alleged against the judgment creditor, Morrison, and for aught that is alleged, the record of the justice may be entirely regular upon its face. If the justice adopted the change made as to the return day of the summons, (as would seem to be the case) the docket would be unobjectionable in form. True, the return of the constable that the defendant was summoned to appear on January 3, 1876, was false; but the falsity of that return would not relieve either the judgment debtor or the plaintiff from the necessity of showing, in the petition for equitable relief, a meritorious defense to the action.

The contention of the plaintiff in error is that the justice’s judgment is absolutely void for want of jurisdiction over the person of Allaire. But in disposing of the case, I have not deemed it profitable to trace the many nice distinctions which have been drawn between judgments void at law and those voidable merely, and have confined myself to the consideration of those principles upon which courts of equity will or will not interfere and set aside judgments for want of proper notice, whether they be such as are commonly denominated void or only voidable.

The practice upon this subject is fairly stated by Mr. Freeman in his work on “ J udgments,” as follows. “ Section 498. It has been held that a judgment rendered without process and without the knowledge of the defendant, may be relieved against without any showing on the question of merits, for the reason that ‘in such case the injury consists in the rendition of the judgment against a party without notice and opportunity of defense; and that it is unjust and unconscientious to attempt to enforce a judgment so obtained.’ But the better established rule undoubtedly is, that notwithstanding an alleged want of service of process, a court of equity will not interfei’e to set aside a judgment until it appears that the result will be other or different from that abeady reached.” See, also, Taggart v. Wood, 20 Iowa, 236 ; Gregory v. Ford, 14 Cal. 138 ; Fowler v. Lee, 10 G. & J. (Md.) 363; Piggot v. Addicks, 3 G. Greene, 427; Crawford v. White, 17 Iowa, 500; Stokes v. Knarr, 11 Mis. 389.

Equity is not concerned about a judgment, wbicb, tbougb irregular, is in fact equitable and just.

Judgment affirmed.

White, J.,

concurred in the affirmance of the judgment, without approving of the syllabus as applied to the case. He was of opinion that the judgment of the justice of the peace in question was not void, but voidable only. TIence the question as to what are the rights of a purchaser from the judgment debtor, where the land purchased is sought to be charged in execution under a void judgment, does not arise in this case.  