The opinion
On Petition foe a Reheaeing.
Zollars, J.
— The elaborate argument of the learned counsel in support of the petition for a rehearing is based mainly, upon the assumption that the decree of divorce was and is *42 ■absolutely null and void, and that hence no amount of laches, nor length of acquiescence, can deprive appellant of the right to have the decree set aside and vacated. The assumption of this false premise is the vice in the argument which leads to a false conclusion. ' It is distinctly stated in the opinion that, ■so far as shown by the complaint in this case, the decree of divorce is not void.
The record in this case does not contain a copy of the decree and proceedings in the Kosciusko Circuit Court. * The infirmities in those proceedings, so far as shown by the complaint, are not such as appear upon the face of the record. They are such as render the judgment voidable, but not void. As we said in the recent case oí Smith v. Hess, post, p.424, which was decided after a very full and careful examination: “Some confusion has been brought into the cases by the use of the terms void and voidable as applied to j udgments. J udgments are frequently spoken of as void, because they may be so de^ dared in a proper proceeding. The general and correct rule, as established by the weight of authority, is, that a judgment by a court of competent jurisdiction is not void, unless the thing lacking, or making it so, is apparent upon the face of the record. If the infirmity do not so appear, the judgment is not void, but voidable. One is a nullity, a mere brutum fuhien, and may be so treated by all persons, in collateral as well as direct attacks. The other, except in certain cases of fraud, is binding upon third parties, and upon the parties to it, as against ■a strictly collateral attack. Freeman Judg., section 116; Allen v. Huntington, 16 Am. Dec. 702 ; Gall v. Fryberger, 75 Ind. 98 ; Bloomfield R. R. Co. v. Burress, 82 Ind. 83 ; Coan v. Clow, 83 Ind. 417 ; Cain v. Goda, 84 Ind. 209 ; Krug v. Davis, 85 Ind. 309 ; Pressler v. Turner, 57 Ind. 56 ; Evans v. Ashby, 22 Ind. 15 .”
The Kosciusko Circuit Court is one of record and general jurisdiction, with full power to hear and render decrees in cases for divorce. It had jurisdiction of the subject-matter, and, so far as shown by the record, of the persons of the pe *43 titioner and defendant. Except as pointed out in the complaint in this case, we must presume in favor of the regularity of the proceedings. The return of the summons in the divorce case, as shown by the complaint in this, was regular and valid. A person examining the record in that case would find nothing indicative of the wrongs and frauds complained of. The wrongs and frauds were upon the defendant and upon the court, which are not of record, and do not render the judgment void in a legal sense, but voidable. Eor the purposes of this case, it may be conceded that neither laches, nor lapse of time, will prevent a party from attacking and overthrowing a void judgment, and the proceedings based thereon, unless a limit as to time is- fixed by positive statute. In such case, third parties have no right to rely upon the judgment or proceedings. Eor manifest -reasons the same rule can not be applied to judgments that are regular upon their face, and voidable merely. Upon such, third parties have a right to rely; and hence upon the discovery of the fact that they have been procured by fraud upon the party, nr upon the court, the injured party should move with reasonablepromptness, and thus save third parties from injury. Such we understand to be the well settled doctrine of the books. We can not extend this opinion by giving the result of an examination of all of the cases cited by counsel. We take the time only to refer to the cases of Pollard v. Wegener, 13 Wis. 569 ; Shaefer v. Gates, 2 B. Mon. 453; Lafayette Ins. Co. v. French, 18 How. 404 ; Pennoyer v. Neff, 95 U. S. 714 ; and to say that in each of them the thing lacking to make a valid judgment is apparent upon the record. After a careful consideration of the arguments advanced, and a re-examination of the questions involved in the ease, we are unable to reach a conclusion different from that stated in the opinion. ' The petition for a rehearing is therefore overruled.
Filed February 23, 1884.