#### M. J. LEE, Respondent, v. ARNE LUCKASEN and Hilda Luckasen, Appellants.

(204 N. W. 831.)

Judgment — application to vacate judgment, not alleging any statutory-grounds, must Ibe denied if judgment and order are not void.

An application to vacate a judgment and court order upon the sole ground that the judgment and order are void, and which does not allege any of the *935statutory grounds for the vacation of judgments or orderSj must be denied when judgment and order attacked are not void..

Opinion filed June 29, 1925.

Judgments, 34 C. J. § 582 p. 374 n. 97.

Appeal from District Court, Griggs County, Cole, J.

Affirmed.

*0. 8.*Gunderson, for 'appellants.

*B. G. Larson*and *Barnett &*Bichardson, for respondent.

BueKE, J.

This action was brought on the 28th day of September, 1922, for the foreclosure of a real estate mortgage. The summons and complaint were duly served upon the defendants who failed to answer and made no appearance of any kind in said action. Judgment by default was duly ordered and entered on the lJth day of February, 1923. Thereafter the mortgaged premises were sold and the report of the sale confirmed on the 2nd day of June, 1923. On the 25th day of August, 1923, the judge of the district court, upon complaint and affidavit c' E. G. Larson, ’attorney for the plaintiff, issued an order appointing E. G. Larson temporary receiver, and providing that the defendants, and each of them, show cause before the .court, on the 2Jth day of September, 1923, at the courthouse in the city of Fargo, at.10 o’clock in the forenoon of said day, why said receiver should not be continued in office until the final disposition of matters involved. The order to show cause was served upon the defendants on the 5th day of September, 1923. Thereafter, and on the 2Jth day of September, 1923, plaintiff appeared, by and through his counsel, and the defendants failing to appear, the court appointed the said E. G. Larson receiver, to receive the crops, ’and proceeds thereof, raised upon the mortgaged lands during the year 1923, and further ordered that the defendants and each of them should turn over to the receiver all crops raised during the season of 1923, grown upon the mortgaged land in said action. On the 25th day of January, 1924, O. S. Gunderson, attorney for the defendants, filed in the district court, in. said action, an affidavit, alleging that he is attorney for the defendant and that he is making the affidavit in their, behalf; that the defendants executed the *936mortgage in said action; tbat owing to adverse conditions they were unable to pay tbe mortgage debt when due; tbat tbe summons and complaint in said action were-duly served.upon them; tbat they bad no valid defense in said action and made no answer and did not appear therein; tbat judgment in said action was-entered against them by default and tbat tbe same was excessive in including $1413.25 of taxes, a deficiency judgment of $586.22, and excessive attorney fees, all of wbicb was not included in tbe prayer of tbe complaint. Tbe said affidavit further alleged tbat tbe appointment of tbe receiver was illegal and void, and upon such affidavit tbe court duly issued its order to tbe plaintiff to appear before said court in tbe city of Fargo, on tbe 1st day of February, 1924, and show cause why tbe said judgment or decree of foreclosure should not in all things be vacated, annulled and sot aside, and to show cause why tbe said foreclosure sale of said premises should not be declared .null and void, and to show cause why tbe receivership proceedings should not be annulled and set aside and the said receiver discharged. Thereafter, and on tbe day appointed, plaintiff appeared by bis attorney and answered tbe affidavit of tbe defendants’ attorney. Tbe defendants offered no further statement, by affidavit or otherwise, and upon a showing made at tbe said bearing, tbe court made an order as follows:—

> “After bearing-the respective counsel and their contentions, tbe court, being fully advised in tbe matter, and it appearing tbat tbe de-, fects complained of in petitioner’s jsetition were, in fact; not as petitioner believed them to be, and tbat there is no defect in tbe foreclosure. proceedings or -of tbe sale of tbe property, it is ordered tbat the order to show cause be vacated and *set ’aside.”,

From this order tbe defendants duly appealed to this court.

The defendants’ action amounts to a motion to set aside tbe judgment and tbe foreclosure sale of the property in said action and tbe order appointing a receiver on tbe ground that tbe same are void, and there is nothing in tbe showing made by tbe defendants tbat would justify tbe setting aside of said judgment, foreclosure sale,- and order appointing a receiver upon any other ground. There axe none of tbe statutory grounds for vacating judgments alleged in tbe affidavit, as provided in § 7483, Comp. Laws 1913. Tbe affidavit admits tbat defendants have no defense to said cause of- action. There is no .affidavit *937of merit, no offer of payment, nor 'any evidence of any effort on tbe part of defendants to redeem, or to vacate tbe judgment so that tbe defendants might answer, in fact, from tbe record and tbe admission in defendants’ affidavit, if tbe judgment was vacated and tbe defendants permitted to 'answer, tbe judgment would be tbe same in another trial, with additional interest added.

Tbe defendants’ sole ground is that tbe proceedings are void. Even if tbe judgment was excessive, it is well settled that it is not void.

In the case of Mach v. Blanchard, 15 S. D. 439, 58 L.R.A. 814; 91 Am. St. Rep. 698, 90 N. W. 1043, tbe court says: “In New York, Iowa, California, and "Wisconsin, under statutes relating to demands for relief, and relief in default cases, substantially if not identically tbe same as those in this state, the courts of last resort have held that where the defendant has not answered, and tbe judgment grants relief not demanded in tbe complaint, tbe judgment is not on that account void but only erroneous. Harrison v. Union Trust Co. 144 N. Y. 326, 39 N. E. 353; Ketchum v. White, 72 Iowa, 193, 33 N. W. 627; Bond v. Pacheco, 30 Cal. 530; Chase v. Christianson, 41 Cal. 253; Jones v. Jones, 78 Wis. 446, 47 N. W. 728. The same conclusion was, in effect, reached by this court in McArthur v. Southard, 10 S. D. 566, 74 N. W. 1031, and this court has held in a criminal action that where tbe court below has jurisdiction of tbe person and of tbe offense, tbe imposition of a sentence in excess of what tbe law permits does not render tbe judgment void. Re Taylor, 7 S. D. 382, 45 L.R.A. 136, 58 Am. St. Rep. 843, 64 N. W. 253. Our conclusion is that the judgment in Parszy v. Mach, 10 S. D. 555, 74 N. W. 1027, was erroneous, but not void. This view is supported by abundant authority. and is consonant with sound reason.”

Defendants state in brief that they have found but one case which appears to- be directly in point, namely, Hibernia Sav. & L. Soc. v. Conlin, 67 Cal. 178, 7 Pac. 477. This case bolds that the judgment was not void.

Again, in the later case of Shirran v. Dallas, 21 Cal. App. 405, 132 Pac. 457, tbe court says:—

> “What, has already been said applied with equal pertinency and force to tbe assault upon tbe judgment in question because pf tÜe alleged illegal allowance of costs and tbe asserted excess in the amount *938awarded by said judgment over tbe.amount sued for. As to tbe matter of costs, it is to be added that tbe cost bill is no part of the judgment roll, and it is to be conclusively presumed, in support of tbe judgment, that all the requirements of the statute which are necessary to the giving tbe court authority to allow costs were duly and regularly observed. Tbe same presumption is to bo indulged with respect to tbe matter of tbe alleged excess in tbe sum awarded by tbe judgment over that declared upon in the complaint, conceding that such a variance in fact exists. In other words, the court having acquired jurisdiction of tbe subject matter of tbe action, and of tbe defendant, it likewise acquired jurisdiction to render judgment in tbe action; and, if thus it awarded to the plaintiffs more than their complaint showed that they claimed or were entitled to, the judgment for that reason is merely erroneous, corrcctible only on appeal therefrom.” 1 Freeman, Judgm. § 135, and authorities cited in footnotes at page 252.

Since tbe judgment is not void, and tbe showing of tbe defendants is not such as to entitle them to a vacation of the judgment on any other ground, tbe judgment of tbe lower court must be, and is, affirmed.

OheistiaNsoN, Cb. J., and Birdzbll, Nuessle, and JoiiNsoN, JJ\, concur.