The opinion
BOND, C. J.
(concurring.) — I concur in the learned
majority opinion in this case and the result thereof, except in what is said in paragraph six, to-wit: “It is elemental that a valid judgment cannot he rendered upon a petition which does not state facts sufficient to constitute a cause of action; this is because the court acquired no jurisdiction of the subject-matter and such a judgment will be treated as a nullity even in a collateral proceeding.” (Italics ours.)
That the judgment of a court of general jurisdiction having the parties to the controversy before it and having power to determine the class of eases for which relief is prayed, is not void because of the failure of the petition to state a cause of action, and is not, for that reason, open to a collateral attack, is a proposition established in this State, and sustained by the overwhelming weight of authority elsewhere. The failure to state any cause of action is. a non-waivable defect upon review of a judgment by appeal or error or in a direct attack made upon it. But it does not deprive the court of its jurisdiction of the class of cases to which the suit in question belongs and it does not ren *273 der its judgment open to any form of collateral attack thereon.
Said Ray, J., in Dollarhide v. Parks, 92 Mo. l. c. 188: “But even if the petition failed to state a cause of action, yet being amendable, the judgment thereon is not a nullity; nor can its validity, or the rights of purchasers thereunder, be attacked in a collateral proceeding like this.”
Said Brace, J., in speaking of the conclusiveness of a judgment of a court having jurisdiction of the parties and the subjects of controversy between them: “It goes without saying that such judgment is binding and conclusive upon the parties and cannot be impeached for any defect in pleadings or proof, and that in a suit upon it the sufficiency of the petition on 'which it was rendered, or the merits of the judgment, cannot be inquired into. [2 Black on Judgments, secs. 970, 971; 2 Freeman on Judgments, sec. 435.] This appeal is entirely without merit and the judgment of the circuit court will be affirmed without damages.” [Holt Co. v. Cannon, 114 Mo. l. c. 519.]
Said Sherwood, J., in discussing the force of a judgment in an attachment suit: “Whether a complaint does or does not state a cause of action, is, 'as far as concerns the question of jurisdiction, of no importance; for, if the complaint states a ease belonging to a general class over which the authority of the court extends, there is jurisdiction and the court has power to decide whether the pleading is good or bad [citing cases]. In all such eases collateral attack on the judgment rendered is altogether inadmissible.” [Winningham v. Trueblood, 149 Mo. l. c. 580-1; expressly affirmed by Fox, J., in Tube Works Co. v. Ice Machine Co., 201 Mo. l. c. 58.]
Said this court also, In Banc, in Rivard v. Railroad, 257 Mo. l. c. 168: “ A court is possessed of jurisdiction when it is permitted by the policy of the law to hear and determine cases of the same nature as the one with respect to which the complaint is made, and where it *274 has jurisdiction of the persons of the parties to the suit. The judgment of the trial court lacking either of those essentials is open to any form of attack. It follows that the judgment of a court of general jurisdiction with the parties before it and with power to grant or refuse relief in the case presented, though contrary to law as expressed in the decisions of the Supreme Court or the terms of a statute, is at most only an erroneous exercise of jurisdiction and as such is impregnable to. an assault in a collateral proceeding.”
In strict accordance with the rule thus established is Jarrell v. Laurel Coal and Land Co., 75 W. Va. 752 , fully annotated in L. R. A. 1916 E, pp. 312, 316, where the annotator says: “When the general character of a judgment is such that its subject-matter falls within the general jurisdiction of the court that enters it, a collateral attack cannot be made thereon even though the pleadings may be defective. And it is not subject to collateral attack even though there was no cause of action stated in the pleadings.” That statement of the law is supported by cases cited under note 4, p. 317, of the same volume.
For the foregoing reasons I am constrained to dissent from the above excerpt from the learned majority opinion; but as the view expressed in that paragraph is not essential to the result reached, I concur in all other respects with the views and result reached in the majority opinion.
Walker, Blair and Graves, JJ., concur in this opinion.