
    [No. 2888.
    Decided March 23, 1898.]
    The State of Washington, on the Relation of John M. Boyle, v. Superior Court of Pierce County.
    PROHIBITION TO SUPERIOR COURT — VACATION OE JUDGMENT — PROCEDURE.
    Prohibition will lie to restrain a court from vacating its own judgment on the ground of irregularity in that there is no proof of service of summons upon defendants of record, when the judgment itself contains a recital of due service and there is no showing in support of the motion to vacate that process had not in fact been served.
    A court has no authority to vacate its judgment on motion made therefor years after its rendition, but the defendant must proceed by an action in equity to set aside the judgment. (Anders, X, dissents.)
    
      Original Application for Prohibition.
    
    
      A. R. Titlow, for relator:
    
      Prohibition will be granted against an inferior court by the supreme court, where the inferior court is attempting to act to the injury of the party from the want of jurisdiction or in excess of its jurisdiction, and where there is nc adequate remedy for the complaining party. State ex rel. Rockford v. Superior Court, 4 Wash. 36; State ex rel. Cummings v. Superior Court, 5 Wash. 519; North Yakima v. Superior Court, 4 Wash. 655; State ex rel. Schloss v. Superior Court, 3 Wash. 701; State ex rel. Machinery Co. v. Superior Court, 7 Wash. 80; State ex rel. Dodge v. Langhorne, 12 Wash. 588.
    Though the recital in a judgment that defendant was duly summoned is, in the absence of the affidavit of service, only prima facie evidence of that fact, yet, when the judgment is directly attacked it must be repudiated before the judgment will be set aside. Whitney v. Daggett, 41 Pac. 471. The court has jurisdiction to enter the judgment even though at the time summons with proof of service had not been filed with the clerk. Hibernian S. & L. Soc. v. Matthai, 48 Pac. 370, and cases therein cited. A judgment reciting that the defendants were duly and regularly served and cited to appear, and that they made default, is an adjudication upon those points as conclusive upon all parties as any other fact at issue. Kizer v. Caufield, 17 Wash. 417. Every fact not negatived by the record will be presumed in aid of the judgment, and it will only be held void when it affirmatively appears from the record that the court had no jurisdiction to render it. Munch v. McLaren, 9 Wash. 676. The decree reciting that the summons and complaint had been duly served, will not be contradicted by the presence in the record (as in this case) of a summons without a return of service. Rogers v. Miller, 13 Wash. 86 (52 Am. St. Rep. 20); Christofferson v. Pfennig, 16 Wash. 491.
    
      
      Stiles & Harvey, for respondent:
    A superior court in this state has the power, on motion, to set aside a default judgment theretofore entered by it, if that judgment is on its face, or on the face of the judgment roll, void for want of service of the summons on the defendants. Freeman, Judgments (8d ed.), § 98; Harris v. Hardeman, 14 How. (14 Law. ed.) 334; Hallett v. Righters, 13 How. Pr. 43; People v. Harrison, 24 Pac. 311; Reinhart v. Lugo, 24 Pac. 1089 (21 Am. St. Rep. 52); McKinlay v. Tuttle, 42 Cal. 571; People v. Greene, 74 Cal. 400 (5 Am. St. Rep. 448); People v. Pearson, 76 Cal. 400; In re City of Buffalo, 78 N. Y. 362. The power of a court to vacate a void judgment does not expire by lapse of time. 6 Enc. Pl. & Pr. 193, and note 3. The proof of service is a part of the record and will, if insufficient, overcome recitals in the judgment. Hallett v. Righters, 13 How. Pr. 43; Laney v. Garbee, 105 Mo. 355 (24 Am. St. Rep. 391); Clark v. Thompson, 47 Ill. 25 (95 Am. Dec. 457); Senichka v. Lowe, 74 Ill. 274; Harris v. Hardeman, 14 How. (14 Law. ed.) 334.
    A void judgment may be ignored at any time the plaintiff undertakes to assert any rights thereunder; or it may be appealed from; or a motion will lie at anytime, on behalf of the defendant, to vacate it and set it aside. 12 Am. & Eng. Enc. Law, pp. 1470, 307; Foreman v. Carter, 9 Kan. 674; Hervey v. Edmunds, 68 N. C. 243; Howard v. Galloway, 60 Cal. 10; Lyhans v. Cunningham, 66 Cal. 42; Russell v. Grant, 122 Mo. 161 (43 Am. St. Hep. 563); Hawkins v. Hawkins’ Adm’r, 28 Ind. 66; Weis v. Schoerner, 53 Wis. 72; Ferguson v. Crawford, 70 N. Y. 253 (26 Am. Rep. 589).
   The opinion of the court was delivered by

Scott, C. J.

This is an application for a writ to proKbit the respondent from vacating a judgment rendered in January, 1894, in favor of tbe Tacoma National Bank, as plaintiff, against Otis Sprague and Mave FL Sprague, bus-band and wife, defendants, tbe relator being now tbe owner of tbe judgment. Tbe judgment contained a recital tbat eacb of tbe defendants “was duly served with a copy of tbe summons and complaint” and tbat eacb of tbem bad failed to appear within tbe time prescribed. On tbe 25th day of February last tbe defendants appeared specially and moved to vacate tbe judgment, serving notice of tbe motion on tbe relator and tbe attorney of record of tbe plaintiff. Tbe motion to vacate was on tbe ground tbat there was no proof of tbe service of tbe process. There was no allegation nor showing tbat tbe process bad not in fact been served. There was a document on file in tbe form of an affidavit showing personal service of tbe process upon eacb of tbe defendants. Tbe same was not sworn to, and tbe contention of tbe respondent is tbat it must be presumed tbat this was tbe only proof of service made, and, it not being sworn to, tbat tbe judgment was void. We think under tbe holdings of this court in Rogers v. Miller, 13 Wash. 82 (42 Pac. 525); Christofferson v. Pfennig, 16 Wash. 491 (48 Pac. 264), and Kizer v. Caufield, 17 Wash. 417 (49 Pac. 1064), tbe presumption must be tbat there was a valid service. TKs document might in fact have been sworn to in open court before tbe judge at tbe time tbe judgment was taken. Although it was irregular not to have proof of service appear of record, this would not affect tbe jurisdiction of tbe court to render judgment. Furthermore, we do not tKnk tbe court would have any authority years after tbe rendition of this judgment to vacate it upon a mere motion like tbe present one. Tbe plaintiff, or its successor in interest, was not before tbe court for any such purpose and could only be brought in after tKs lapse of time by tbe service of process. A bill in equity, or perhaps a petition, would lie to set aside the judgment, but in such case the plaintiff or the party in interest would have to be legally brought in by service of process, and just cause for setting aside the judgment would have to be shown; for instance, that the process in fact had not been served, and this alone might not be sufficient, for a party is bound to proceed with reasonable diligence. It is also alleged in this case that the defendants have recognized the judgment by making several payments upon it. We think a good cause is- shown for the issuance of the writ. State ex rel. Nolte v. Superior Court, 15 Wash. 500 (46 Pac. 1031); State ex rel. Dodge v. Langhorne, 12 Wash. 588 (41 Pac. 911).

Writ granted.

Gordon and Beavts, JJ., concur.

Anders, J.

I think the judgment sought to be set aside in this case was not void, for the reason that the recital therein" that the defendants were duly served with a copy of the complaint and summons, is not contradicted by anything appearing to the contrary in the record. In such cases the recital is itself an adjudication of the fact recited. But I am of the opinion that a void judgment may be set aside at any time on motion; and I therefore concur in the result.  