
    GIBSON et al. v. DIZNEY.
    No. 9296
    Opinion Filed Jan. 7, 1919.
    Rehearing Denied Feb. 11, 1919.
    (178 Pac. 124.)
    (Syllabus.)
    1. Judgment — Default. Judgment — Validity.
    Where the allegations of a petition are sufficient to challenge the attention of the court and invoke its judical action to determine the sufficiency thereof, a judgment, rendered in such .action by default against a defendant who has been personally served with summons, will not be void.
    2. Same — Vacation!.
    A judgment which is not void cannot be set aside upon the mere filing of a motion therefor at a subsequent term of court, and five years after the rendition of said judgment, upon the ground that the petition did not state a cause of action. ,
    Error from District Court, Garfield County; James B. Cullison, Judge.
    Action by F. E. Gibson against Minnie M. Anthony and others. Judgment 'for plaintiff by default, defendant George M. Dizney’s motion to vacate the judgment against him was sustained, and plaintiff and the other defendants bring error.
    Reversed, and judgment reinstated.
    A. L. Zinser and Harry O. Glasser, for plaintiffs in error.
    Parker & Simons, for defendant in error.
   HARDY, J.

F. E. Gibson sued Minnie M. Anthony, Henry F. Anthony, George M. Diz-ney, and Charles Malone upon a promissory note and a mortgage securing such note on certain real estate in Garfield county. Defendant Malone filed disclaimer, tfie Antfionys appeared by attorney, and Dizney made default. Pursuant to tfie prayer of tfie petition, after bearing evidence on February 27, 1912, tfie court rendered a personal judgment against tfie Antfionys and Dizney, wfiicfi judgment was kept alive by tfie issuance of execution tfiereon. On April 28, 1917, defendant Dizney filed motion in tfie district court of Garfield county, tfie superior court having been abolished, to vacate tfie judgment against fiim on tfie theory that it was Void because tfie original petition failed to state a cause of action against fiim. This motion was sustained, whereupon plaintiff made application to have said cause set for trial, which application was denied, and plaintiff prosecutes error. After alleging tfie execution of tfie note and mortgage to secure payment of tfie same by tfie Antfionys, and that tfie amount thereof was due and owing by defendants, it was further alleged that defendant Minnie M. Anthony, tfie owner of tfie real estate in said mortgage described conveyed tfie same by warranty deed to one Dierkson, and that said Dierkson executed a mortgage tfiereon to said Minnie M. Anthony, and it is further alleged that said Dierkson sold tfie property to defendant Dizney; that tfie deed conveying said property to Dizney contained tfie following provision:

“Except tfie unpaid balance of a $1,300 mortgage in favor of F. E. Gibson amounting to $1,100 and interest and one mortgage for $285 and interest in favor of Minnie M. Anthony which tfie second party assumes and agrees to pay.”

The allegations of tfie petition were sufficient to challenge tfie attention of tfie court and invoke its action in a determination of plaintiff’s claim for judgment against Diz-ney. If we assume that upon tfie face of the petition no liability was shown against defendant Dizney, this did not defeat tfie jurisdiction of tfie court to determine such question, and tfie fact that tfie conclusion reached was erroneous does not render tfie judgment void. Tfie court had jurisdiction of tfie parties and the subject-matter of the litigation, and possessed jurisdiction to construe tfie petition and determine for itself whether a cause of action was stated against Dizney. Hill v. Persinger, 57 Okla. 663, 157 Pac. 744; Chivers v. Board of Commissioners. 62 Okla. 2, 161 Pac. 822, L. R. A. 1917B, 1296; National Surety Co. v. Hanson Builders’ Supply Co., 64 Okla. 59. 165 Pac. 1135; Bell v. Ford, 68 Okla. 235, 173 Pac. 524. Besides it appears from tfie recital in tfie decree that evidence was heard in support of the allegations of tfie petition, and we may assume the evidence offered cured any defect in tfie petition.

The order was final, in that it field tfie judgment void and vacated the same, and tfie court denied plaintiff’s application to have said cause set down for trial and to try said cause upon tfie issues raised upon tfie petition. Tfie theory of defendant Dizney was that thg judgment was void because tfie petition stated no cause of action against fiim, and in this contention fie was sustained by tfie lower court. There was nothing more that plaintiff could do in tfie trial court, for fiis rights, if any fie had, were finally determined against fiim, and tfie proper remedy was by appeal to this court. Tfie preeedure adopted by Dizney can only be resorted .to in case of a void judgment, and cannot be used to correct errors, or irregularities that do not render tfie judgment void. Tfie most that can be said of the judgment is that it was perhaps erroneous, but no motion for a new trial was filed nor appeal taken therefrom. nor was a petition for a new trial filed as authorized by statute, and tfie order of the court setting aside the judgment under tfie circumstances was in excess of its powers and jurisdiction, and is therefore void. National Surety Co. v. Hanson Builders’ Supply Co., 64 Okla. 59, 165 Pac. 1136; Hawkins v. Hawkins, 52 Okla. 786, 153 Pac. 844.

Tfie order appealed from is reversed, and. the cause remanded, with instructions to reinstate tfie judgment in favor of plaintiff and against defendant Dizney.  