
    SANDERS v. PRICE. SAME v. ELIZ. COOPER. SAME v. D. A. COOPER.
    1. Attorney — Presumption.—When an attorney appears on the record, the presumption is that he appears by authority.
    2. Collateral Attack — Voidable Judgment. — A Judgment regular on its face, and of whose subject matter Court had jurisdiction, cannot be set aside in another action because the attorney acting for plaintiffs had no authority to do so; but it must be attacked by a direct proceeding in that cause. Such judgment is voidable only, and these actions cannot be considered such direct proceedings to impeach the judgments in question.
    3. Evidence — Judgment.—Parol Testimony in another action is not competent to impeach a voidable judgment.
    
      Before Benet, J. Pickens, July, 1898.
    Reversed..
    Action for partition by Nancy E. Sanders, Hannah Sanders, Martha Waldrop, and Mary Roper v. W. R. Price; same plaintiffs v. Elizabeth Cooper; same plaintiffs v. D. A. Cooper. From judgments for plaintiffs, defendants appeal.
    
      Messrs. C. E. Robinson and Haynesworth & Parker, for appellants,
    cite: Judgment regular on its face, and within jurisdiction of the Court imparts absolute verity to all collateral proceedings, and is binding on parties thereto: 24 S. C., 398; 34 Si C, 452; 35 S. C, 613; 37 S. C., 102; 39 S. C„ 477; 40 S. C., 193; 41 S. C., 1; 47 S. C, 525. All proceedings are collateral except such as are taken in the original action: 40 S. C, 193; 24 S. C., 398; 17 S. C., 439; 22 S. C., 160; 41 S. C., 1. Judgment in question can only be attacked in original action: 17 S. E. R., 496; 42 N. Y., 361; 7 N. Y„ 501; 88 U. S., 453-
    
      Mr. J. P. Carey, contra,
    cites: This Court will not consider positions not argued before and passed on by the Circuit Judge: 51 S. C, 506; 44 S. C., 22. One whose name has been used by an attorney zvithout authority is not required to seek relief from such judgment by motion in the original cause; original cause is ended, respondents are strangers: 16 S. C., 620; 45 S. C., 323. Court has held that motion in the case is proper remedy in case of voidable judgments: 47 S. C, 525; 34 S. C., 452; 24 S. C., 398; 1 T. R., 62; 6 How., 163; 75 Am. Dec., 147; 25 N. J. L., 225; 23 lb., 116; 3 Ohio, 412; 115 Ill., 33; 30 Col., 439; 20 la., 186; 60 Am. St. R., 648; 22 S. C., 257;.Rice Eq., 188; 83 Am. Dec., 527; 94 lb., 742; 3 A. S. R., 621; 5 A. S. R., 454; 95 U. S., 714; 26 Am. R., 589; 40 S. C., 69. For an attorney to represent a party without authority is a legal fraud, which may be attacked in any way and anyzvhere: 46 S. C., 474. Questions relating to attacks on judgments for want of jurisdiction are federal, and under these decisions such 
      
      judgments may be. attacked collaterally: 75 Am. Dec., 151; The attack in this case is under a direct proceeding: 23 S. C., 154; 22 S. C., 257. Where reféree rules testimony competent, and no exception is taken to bring it before Circuit Judge, exception comes too late here: 49 S. C., 355; 44 S. C., 16. Attack on judgment being direct, parol evidence competent: 23 S. C., 154; 22 S. C., 257. Judgment rendered on unauthorised appearance is void as to all parties and those acquiring rights thereimder: 20 la., 182; 6 How., 163; 40 S., C., 77; 25 S. C., 280.
    July 24, 1899.
   The opinion of the Court was delivered by

Mr. Justice Jones.

These three cases were heard together. Each action is by the same plaintiffs for the partition of a tract of land, plaintiffs claiming as heirs at law of B. S. Porter, deceased. The defendant in each case claims title under a decree for sale of said land as the property of B. S. Porter’s estate, under partition proceedings in the case of Porter et al. v. Porter et al., in which, as shown by the record, the plaintiffs in this action appeared as parties plaintiff by their attorney, C. E. Robinson, Esq. This record was introduced in evidence by plaintiffs in this case. Then, over defendant’s objection, plaintiffs testified that they never employed Mr. Robinson, or authorized any one to employ him, and did not know their names were being used in the action for the sale of the lands. Upon this testimony the Circuit Court held the proceedings and judgment in Porter v. Porter void as to plaintiffs, and so decreed for partition in their favor.

We think the Circuit Court erred. The proceedings in the case of Porter v. Porter, under which the defendants claim title, were regular on their face. The record disclosed no jurisdictional defect, as the Court had undoubted jurisdiction of the subject matter of the suit, and it appeared on the Record that plaintiffs were parties duly represented by an attornew at law. In this State the law does not require, nor is it customary, that attorneys, claiming to represent parties, file warrants of attorney. When an attorney appears on the record for a party, a presumption arises that he appears by authority. Bailey v. Boyce, 5 Rich. Eq., 200; Latimer v. Latimer, 22 S. C., 263.

The judgment in Porter v. Porter is not void but merely voidable, for the alleged jurisdictional defect is not manifest from an inspection of the record -(which presumptively shows the contrary), but is only made to appear by evidence de hors the record. Such judgment being merely voidable, is not subject to collateral attack, and must be held as valid and conclusive until set aside by a direct proceeding instituted for that purpose in that cause. Turner v. Malone, 24 S. C., 404; Crocker v. Allen, 34 S. C., 457; Gillam v. Arnold, 35 S. C., 613; Martin v. Bowie, 37 S. C., 114; Prince v. Dickson, 39 S. C., 480; Hankinson v. R. R. Co., 41 S. C., 18; Hunter v. Ruff, 47 S. C., 552. These actions cannot be considered such direct proceedings brought for the purpose of impeaching the judgment in question. It follows, also, that the parol testimony upon which the Circuit Court relied in contradiction of the record was incompetent in these actions. Parr v. Lindler, 40 S. C., 197. The judgment under which the defendants claim title, until set aside in a proper proceeding, is a complete defense to plaintiff’s action for partition, and should have been so held by the Circuit Court.

The judgment of the Circuit Court is reversed.  