Apr. 1902.]

Concurring Opinion WHITE, J.

Every one of the causes of action stated in the complaint, if they may be regarded as independent causes, calls for equitable relief. They could be properly joined in one bill. The majority opinion is based upon what is said in 1 Black, on Judgments, § 252, and Morrill v. Morrill, 20 Ore. 96 (25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95); and Kalb v. German Savings & Loan Society, 25 Wash. 349 (65 Pac. 559). The meaning of the text in Black will be better understood by a reference to the authorities cited by the author in its support.

Lee v. Kingsbury, 13 Tex. 68 (62 Am. Dec. 546), was a suit in trespass to try title. The defendant claimed under a mortgage foreclosure sale. On the trial, evidence was offered to show that the land, at the time the mortgage was executed, was homestead, and therefore that the mortgage was void, and therefore that the decree foreclosing same was void. It was clearly a collateral attack. It was held that the validity of the mortgage was the very question at issue, heard and determined in the foreclosure suit, and that the evidence attacking the foreclosure judg ment upon that ground was not admissible in that suit. So in Sturgis v. Rogers, 26 Ind. 1,- suit on appeal bond, it was held that the judgment affirmed on appeal in the case in which the bond was given could not be assailed. So, in an action on a promissory note given in satisfaction of a judgment, it was held the validity of the judgment could not be attacked. Mitchell v. State Bank, 1. Scam. 526.

In these cases the judgment was attacked in a subsequent suit collaterally, not for the purpose of having the judgment annulled, but merely for the purpose of defeating the action in the second suit. In these cases, had the attack been permitted, the judgments would not have been annulled, but the only result would have been the defeat of

20-28 WASH.

Concurring Opinion - WHITE, J.

[28 Wash.

the second action. These and similar cases illustrate the meaning of the quotation from Black, where it is said that if the action or proceeding has an independent purpose, and contemplates some other relief or result, although the overturning of the judgment may be important, or even necessary to its success, then the attack would be collateral, and show that the proposition as stated in his text, whether correct or not, has no application here. But even that rule, as announced by Mr. Black, is confined to cases where the judgment was attacked upon the ground of error and irregularities, and has no application to judgments rendered without jurisdiction of the subject-matter or the parties. This is made clear by other portions of the same section, quoted from by respondent, and authorites there cited, among which are: Penro 1. McKinzie, 116 Ind. 35 (18 N. E. 384), where it owner of land may maintain a suit to annul a void judgment, so as to have the apparent lien upon his land created by such judgment removed, and that this is a direct, and not a collateral attack. And McCampbell v. Durst, 73 Tex. 410 (11 S. W. 380), where it was held that a suit by the vendee of the administrator to set aside certain judgments of the probate court, and to cancel deeds executed under such judgment, to remove same as a cloud upon plaintiff's title, was a direct attack upon the judg ment, and properly maintained. In that case the court said:

eld that the

"These proceedings constitute a part of appellant's claim and eventuate in the deeds, against both of which relief is directly sought in this suit. We think the suit is not collateral, but a direct proceeding to vacate the deeds," etc.

Daniels v. Benedict, 50 Fed. 348, is an authority in point. There the widow brought suit in equity for partition, and to have allotted to her her share of the estate, and also, to that end, to have annulled a fraudulent decres

Apr. 1902.]

Concurring Opinion — WHITE, J.

of divorce obtained against her by her husband a number of years prior to his death; setting out fully in her bill the marriage, the alleged divorce, and the facts rendering the decree of divorce fraudulent and void. A demurrer to the bill was overruled, the court holding that the suit was in all respects properly brought. In that case, had the decree of divorce been valid, the widow would not have been entitled to partition of his estate, and hence she sought by her bill to have the decree of divorce annulled. If that was not a collateral attack, certainly the attack here is not collateral.

Morrill v. Morrill, 20 Ore. 96 (25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95), cited in the opinion, is not opposed to the view contended for by the appellant. That was a suit to quiet title. The defendant claimed a portion of the lot under a judgment of artition had in a suit between him and the plaintiff, in which, admittedly, the court had jurisdiction both of the subject matter and of the parties. Defendant relied upon that judgment. Plaintiff, in her reply, sought to attack it for fraud and irregularities. The court said:

"It is first important to determine whether this is a direct or collateral attack on this decree. The complaint contains no allegations concerning this decree, but the first mention thereof is in the answer, where defendant pleads it as an estoppel. The plaintiff then seeks to avoid its effect by averring in the reply matters which she claims are sufficient to vitiate it. This is undoubtedly a collateral attack. It is an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying the decree.

And further on in the opinion says:

"As we have already said, this can not be considered a direct attack upon this judgment. No reference is made

Concurring Opinion - WHITE, J.

[28 Wash.

to the judgment in the complaint. No facts are alleged upon which a court could base a decree annulling the decree or judgment.'

The court there held the attack collateral, because it was not made in the complaint; because the suit was not brought for the purpose of having the decree annulled; because there was no allegation upon which any judgment. could have been rendered annulling the decree.

But in the case at bar the attack is made in the complaint; the suit is brought for the purpose-the express purpose of annulling the alleged decree of divorce and the other judgments; allegations were made in the complaint upon which a decree can be rendered annulling. that decree and those judgments. Under the ruling, then, in Morrill v. Morrill, supra, the attack here upon the decree of divorce, as well as upon the judgments entered in December, 1886, is a direct and not a collateral attack. It will be observed that the suit, in Morrill v. Morrill was one to quiet title, and for that purpose it was sought to have the decree of partition annulled. But it is not suggested that the fact that the suit was also to quiet title would have made it any the less a direct attack had the attack been made in the complaint.

Kalb v. German Savings & Loan Society, supra, was a suit alleging tenancy in common and asking partition. It was met by answer setting up a judgment quieting title as against the plaintiff. The reply alleged facts to invalidate that judgment. We said:

"It will be readily observed that this is not an action to set aside the judgment in French v. Dennis, but one seeking to have Herbert Dennis, the defendant in that action, declared to have an interest in said property, notwithstanding a judgment declaring he has no interest. It is well, therefore, to determine at the outset whether this

Apr. 1902.]

Concurring Opinion - WHITE, J.

action is a direct or collateral attack upon that judgment. No mention of the judgment in French v. Dennis is made in the complaint herein. The answer, after denying all the allegations in the complaint, sets up the judgment as a bar to plaintiff's right of recovery, even if he ever had any interest in the property. The reply, after denying the allegations of the answer, sets ont facts which plaintiff claims invalidated the said judgment."

From this it is plain that we only intend to hold that the attack was not direct, but collateral, because the attack was not made in the complaint; following in this Morrill v. Morrill, supra, and other cases announcing the same rule for the same reasons. But it is answered that it makes no difference whether the attack is made in the complaint or in the reply; that the test is whether the suit is brought to annul the judgment. We must not overlook the fact that the purpose of the suit is determined by the complaint, and not by the reply,- a purely defensive pleading. In Dormitzer v. German Savings & Loan Society, 23 Wash. 132 (62 Pac. 862), in passing upon a similar question, we said:

"The respondent claims that the complaint in this action is to foreclose the mortgages therein mentioned, and that the probate proceedings by which title to one-half of the property in controversy passed from the minor heirs. to F. M. Tull, under whom respondent claims, can not be questioned, because the same would be a collateral attack. The complaint in apt and specific allegations attacks directly the probate proceedings and the guardian deeds thereunder," and we overruled the contention.

The quotation from the Am. & Eng. Enc. Law to the effect that "any proceeding which is not instituted for the express purpose of annulling, correcting or modifying the judgment or enjoining its execution," will not bear the construction put upon it in the opinion. "Express pur