The opinion
Chief Justice Campbell
dissenting:
With the conclusion on that branch of the case which pertains to the decree of the County Court of Washington County I cannot agree. That the present attack thereon is collateral is plain; indeed, is not gainsaid. The decree is adjudged by this court to be void •on the ground that defendant therein was not served with summons. An attempt, at least, to do so by publication was made, but this court says that the affidavit on which the order therefor was based does not •conform to the pertinent code requirement. There is a well recognized distinction in the law applicable to direct and collateral attacks on judgments. When the attack is direct, evidence dehors the record to show lack ■of jurisdiction is permissible; when it is collateral, the record alone must be looked to. If, as the opinion says, the record affirmatively shows that no sufficient ■supporting affidavit for the order of publication was filed, then the conclusion inevitably follows that the -decree based upon such attempted service is void. But ft is just here that I take- issue with the-opinion. There *126 is a marked difference between an affirmative and a. negative showing. For example, if this decree was being reviewed in an appeal therefrom, a direct attack,, the certificate of the clerk of the trial court to the transcript would exhibit to the reviewing court every order made below, and every paper filed in the cause, and the-authentication by the judge of the bill of exceptions-would disclose all the evidence introduced. If no affidavit at all was included in the record, or an insufficient one for the order of publication was thus brought up, the reviewing court would necessarily hold the-judgment void. This showing, however, would be a. negative showing of its invalidity. If this was a suit in equity to set aside or cancel the decree because it was rendered without notice to defendant, evidence dehors the record to impeach it would be admissible, and if the proof was clear that what purported to be a sufficient affidavit found in the files was, as matter of fact, a forgery, or not filed until after the judgment was rendered, this would be an affirmative showing and would justify a cancellation. If, in this collateral attack, the recitals in the decree included in the record plainly and unquestionably identified the defective affidavit -as the only one on which the order was granted,, this would be an affirmative showing and sufficient to invalidate the judgment. But the case at bar, a collateral attack, is different from either of the ones supposed. Here the trial judge recites in the decree that an affidavit was filed containing the things which the-code prescribes. A defective one is found in the files when, years later, the clerk authenticates the transcript. Evidently it was not the one recited by the judge, for they materially differ. We should, therefore, presume that the deféctive one was rejected and ignored and that subsequently a good one was filed on which the order was made, and that, in the lapse of time, it has been lost or mislaid. In the Farmers *127 Union Ditch Company case supra this court held that the entire absence from the files and record of a required affidavit is not, in a collateral attack on a judgment, an affirmative showing of its invalidity. By precisely the same reasoning, and on principle, the mere presence of the defective affidavit in this record is, at most, a negative showing, when, as here, the recitals and findings made by the trial judge in the decree declare that a required and sufficient statutory affidavit was filed. In the Farmers Union case this court indulged the presumption, in order to give verity to the decree, that a sufficient and proper affidavit was in fact filed, though at the time the record was authenticated no affidavit was found among the papers in the cause. In the case at bar this court, for the same reason, should now indulge the presumption that in addition to the defective affidavit found, another and sufficient one was seasonably filed upon which the order was based, in view of the recitals in the decree referred to. Certainly the positive findings of the trial court, which are embodied in the decree, are not, as a species of evidence, inferior to the negative showing resulting from the presence of a defective affidavit, or the absence of a proper one. There is nothing in this record which affirmatively shows that a proper and additional affidavit was not filed which the recitals in the ■decree say was presented to the court when it judicially determined that due service of summons by publication was made. Indeed the presence of this defective affidavit is not at all inconsistent with the fact that, at the appropriate time, another and good affidavit was filed on which the order was based. And, on this collateral attack, in order to give due credit and faith to a judgment of a court of competent jurisdiction, which the County Court of Washington County is in a case of this character, this court should say that the record now before it does not affirmatively show its in *128 validity. The opinion overlooks, if it does not ignore, that different rules as to proof apply to direct and collateral attacks on judgments. It is directly contrary to the very cases from this court on which it purports to-be founded, particularly to Van Wagenen v. Carpenter, Farmers Union Ditch Co. v. Rio Grande Canal Co., and Burris v. Craig therein cited.
Decided June 5, A. D. 1911;
rehearing denied October 2, A. D. 1911.