# Lowden v. Stephens County Excise Board > Supreme Court of Oklahoma · June 16, 1942 · 191 Okla. 5 URL: https://www.frixlaw.com/law-library/cases/3835527 ## Case - **Full name:** LOWDEN Et Al. v. STEPHENS COUNTY EXCISE BOARD - **Court:** Supreme Court of Oklahoma - **Decided:** June 16, 1942 - **Citations:** 191 Okla. 5; 126 P.2d 1023; 1942 OK 240; 1942 Okla. LEXIS 324 - **Precedential status:** Published - **Opinion:** Dissent by Davison - **Judges:** Welch, Corn, Riley, Osborn, Bayless, Gibson, Davison, Hurst, Arnold - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3835527 ## Opinion text DAVISON, J. (concurring in part and dissenting in part). On the basis of stare decisis I concur with the holding of the majority opinion that the portions of the judgments approving indebtedness apparently barred by the statute of limitations are void. I am not entirely satisfied that this holding constitutes an accurate application of the principles of law which govern or should govern the validity of judgments attacked collaterally. But since, as respects judgments against municipalities, there is a decided tendency in many of our prior decisions to lightly regard and loosely apply the rules respecting collateral attack which render judgments against individuals invulnerable when fraught with similar imperfections, and since desirable results are, in most instances, obtained by the above-mentioned modified application of the law, I do not deem it within the scope of my duty to urge in this type of case a strict adherence to the rigid requirements of the law which makes a judgment, even though erroneous, finally decisive of a controversy if the court rendering it had jurisdiction over the parties and the subject matter and its jurisdiction was properly invoked giving it power, to render the particular judgment. Protest of Gulf Pipe Line Co., 168 Okla. 136 , 32 P. 2d 42 . I believe, however, that there is a limit beyond which even a loose adherence to the rules respecting collateral attack prevents us from going. In my judgment, that limit has been exceeded in this case by that portion of our decision which denies the validity of the judgments insofar as they relate to indebtedness not affected by the statute of limitations. The basis of our decision is suspicion *9 aroused by slight attending circumstances. Suspicion of what? That the indebtedness exceeded the debt limit of the school district? The record does not reflect such an excess in either case. In fact, the contrary is expressly found to be true in the Lowe & Campbell Athletic Goods case. Do we suspect the good faith of the court that rendered the judgment which included this finding, or of the attorneys who drew the journal entry? Our belief should be to the contrary, unless positive facts make a presumption of good faith impossible. Do. we suspect a plaintiff’s claim is bad because the defendant defaulted or did not file the character of pleading we think should have been filed? If so, and if such suspicion renders a judgment void, the best defense in any action is no defense. Jealous though we may be of the rights of municipalities, we are, in my judgment, transcending the limits of the proper exercise of judicial power when we hold on collateral attack that a judgment based on a debt is bad when there is not an affirmative indication in the record that a successful defense could have been presented and where the court rendering the judgment had jurisdiction of the subject matter, jurisdiction of the person, and possessed the power to render the particular judgment. When we, on collateral attack, destroy a judgment or portion thereof, merely because it appears erroneous, we go to the very verge of the law; when we destroy the portion of a judgment which does not even appear erroneous, we go beyond the limit. The suggestion is made that a declaration of the partial invalidity of the judgment is inappropriate in this action because the power to decide such a question should not be lodged in the excise board. It is pointed out that questions relating to tax levies to satisfy judgments are, in the first instance, passed upon by that body. The reasoning upon which this conclusion is based is not sound. If we adopt it, we take an inconsistent position. We say to the excise board: You have the authority to review this judgment for the purpose of determining whether any portion of it is invalid and it is your duty to pass on any intricate questions of law essential to that determination. But if you decide, as you should have in this case, that a portion of the judgment is illegal, you must then shut your eyes and declare the remainder of the judgment illegal, even though separation of the good from the bad involves merely a matter of mathematical calculation. In other words, we impose upon the excise board the duty to apply intricate principles of law, but after it has made that application we deny that it is competent to apply simple arithmetic. There is reason indeed to deny that excise boards should determine the validity of judgments or that courts reviewing their acts should exercise greater power by doing so. This because of the involved questions of law that may arise; but to so hold at this date would require the reversal of many of our decisions. In my judgment, the power to do the greater includes the lesser. The power to declare an entire judgment void comprehends the power to declare a part thereof void when such declaration is appropriate. It is recognized law that a severable judgment may be declared invalid in part and valid in part. 31 Am. Jur. 68 . For the reasons stated, I respectfully dissent in part. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3835527. Public record. Not legal advice.