Hanson v. Wolcott

1. Void Judgment, May he Vacated on Motion, at any Time. A void judgment may be vacated and set aside at any time, on motion of tbe defendant, without advising the court that the defendant has a valid defense to the action in which the pretended judgment is rendered. 2.--Sections 572 and 575 of the civil code of 1868, commented upon, and explained.

Error from Wyandotte District Court. In January 1874, Wolcott commenced an action in the district court against two parties, each named Hans Hanson. The summons in the action was in due form against both defendants, and was directed to the sheriff of Wyandotte county, whose return on said summons is as follows: “Received this summons on the 9th of January 1874, and served the same in my county by giving to and leaving with Hans Hanson personally a true copy thereof, and by leaving at the usual place of residence of Hans Hanson a true copy thereof, on the 17th of January 1874.” Defendants having made default, judgment in favor of Woloott and against both Hansons was rendered on the 9th of March^l 874. On the 8th of December 1875, “Hans Hanson, defendant second named in the above entitled cause,” appeared “specially to contest the jurisdiction of said court over his person,” and filed his motion “to set aside the judgment rendered by default on the 9th of March 1874 against this defendant,” alleging that no service of summons had been made on him. On the hearing of this motion it was shown that “Hans Hanson, defendant first named,” had resided in Wyandotte county in 1873 and 1874, and that “Hans Hanson, defendant second named,” had not been personally served, and had never, resided in Wyandotte county, but had resided in Kansas City, Mo., from July 1873, until late in the fall of that year, and then went to Wisconsin, where he remained a long time, being in Wisconsin during the whole of the month of January 1874. He made proof also, that he did not know of the existence of the suit against him, nor of said judgment, nor of any proceedings therein, until shortly before he filed his motion to set such judgment aside. Said motion was heard at the December Term 1875 of the district court. The motion was overruled and denied, and Hanson brings the case here on error.