Law of Voids – NC

“If the order is void, it may be attacked at any time in any proceeding,” Evans v Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990)

“a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally” Oak Park Nat. Bank v Peoples Gas Light & Coke Col, 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st Dist. 1964)

“that judgment is void and may be attacked at any time in the same or any other court, by the parties or by any other person who is affected thereby.”. It is also clear and well established law that a void order can be challenged in any court at any time.”  People v Wade, 116 Ill.2d 1, 506 N.E.2d 954 (1987)

“A void judgment may be attacked at any time, either directly or collaterally.” In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992)

“if the order is void, it may be attacked at any time in any proceeding,” Evans v Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990)

“a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally” – The law is well-settled that a void order or judgment is void even before reversal.  Vallely v Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920)

“Courts are constituted by authority and they cannot go beyond that power delegated to them.  If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Old Wayne Mut. I. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).

a court “cannot confer jurisdiction where none existed and cannot make a void proceeding valid.” People ex rel. Gowdy v Baltimore & Ohio R.R. Co., 385 Ill. 86, 92, 52 N.E.2d 255 (1943). 

“It is clear and well established law that a void order can be challenged in any court.”  Old Wayne Mut. L. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907)

“A void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally,”  People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994). 

“A judgment is characterized as void and may be collaterally attacked at any time where the record itself furnished the facts which establish that the  court acted without jurisdiction.” People v Byrnes, 34 Ill.App.3d 983, 341 N.E.2d  729 (2nd Dist. 1975).

California

Motions to vacate void judgments may be made at any time after judgment. (County of Ventura v. Tillett, supra, 133 Cal. App. 3d 105, 110.).

A judgment is void on its face if the trial court exceeded its jurisdiction by granting relief that it had no power to grant. Jurisdiction cannot be conferred on a trial court by the consent of the parties. (Summers v. Superior Court (1959) 53 Cal. 2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668]; Roberts v. Roberts (1966) 241 Cal. App. 2d 93, 101 [50 Cal. Rptr. 408].)

The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.’ (For a discussion of the 1933 amendments to section 473 see Estate of Estrem, 16 Cal. 2d 563, 572 [107].

“Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]” (7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828.).

Section 437, subdivision (d) of U.S. Code, provides that a court, on noticed motion, may set aside void judgments and orders. Courts also have inherent power to set aside a void judgment. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.)

It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]’ [Citations.]” (Ibid; accord Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761

“[A] court may set aside a void order at any time. An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree — a void order.” (MacMillan Petroleum Corp. v. Griffin (1950) 99 Cal. App. 2d 523, 533 [222 P.2d 69]; accord: People v. West Coast Shows, Inc. (1970) 10 Cal. App. 3d 462, 467 [89 Cal. Rptr. 290]; Svistunoff v. Svistunoff (1952) 108 Cal. App. 2d 638, 641-642 [239 P.2d 650]; and see: 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 7, pp. 4024-4025.)

A “final” but void order can have no preclusive effect. “’A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.’ [Citation.]” ( Bennett v. Wilson (1898) 122 Cal. 509, 513-514 [55 P. 390].) (Ibid)

“Motions to vacate void judgments may be made at any time after judgment.” (County of Ventura v. Tillett, supra, 133 Cal. App. 3d 105, 110.). 

A judgment is void on its face if the trial court exceeded its jurisdiction by granting relief that it had no power to grant. Jurisdiction cannot be conferred on a trial court by the consent of the parties. “(Summers v. Superior Court (1959) 53 Cal. 2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668]; Roberts v. Roberts (1966) 241 Cal. App. 2d 93, 101 [50 Cal. Rptr. 408].)

“Thus, the fact that a judgment is entered pursuant to stipulation does not insulate the judgment from attack on the ground that it is void.” In People v. One 1941 Chrysler Sedan (1947) 81 Cal. App. 2d 18, 21-22 [183 P.2d 368]

Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud.” (7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828.). Section 437, subdivision (d), provides that a court, on noticed motion, may set aside void judgments and orders. Courts also have inherent power to set aside a void judgment. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.).

“It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order.” (Ibid; accord Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761

“[A] court may set aside a void order at any time. An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree — a void order.” (MacMillan Petroleum Corp. v. Griffin (1950) 99 Cal. App. 2d 523, 533 [222 P.2d 69]; accord: People v. West Coast Shows, Inc. (1970) 10 Cal. App. 3d 462, 467 [89 Cal. Rptr. 290]; Svistunoff v. Svistunoff (1952) 108 Cal. App. 2d 638, 641-642 [239 P.2d 650]; and see: 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 7, pp. 4024-4025.)

Time limitation does not apply where the judgment is based on a fraudulent return. (Washko v. Stewart, supra, p. 318; Richert v. Benson Lbr. Co., supra, p. 677.).

It is true that the statute of limitations does not apply to a suit in equity to vacate a void judgment. (Cadenasso v. Bank of Italy, supra, p. 569; Estate of Pusey, 180 Cal. 368, 374 [181 P. 648].) This rule holds as to all void judgments, in two other cases, People v. Massengale and In re Sandel, the courts hearing the respective appeals confirmed the judicial power and responsibility to correct void judgments (in excess of jurisdiction).

Arkansas

Arkansas Supreme Court has “made it clear that actual knowledge of a proceeding does not validate defective service of process.” Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989); Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982).

Void judgments have no legal effect. Davis v. Office of Child Support Enforcement, 322 Ark. 352, 357, 908 S.W.2d 649, 652 (1995) (citing Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905)).

A void judgment or decree is a mere nullity, and has no force, either as evidence or by way of estoppel. The holding that a void judgment may be attacked collaterally was reaffirmed in Chester v. Arkansas State Board of Chiropractic Examiners, 245 Ark. 846, 435 S.W.2d 100 (1968).

A judgment rendered without jurisdiction is void. Cloman v. Cloman, 229 Ark. 447, 316 S.W.2d 817 (1958).

It is not necessary to appeal from a void order because it never became effective. A void order is subject to collateral attack. Pendergist v. Pendergist, 267 Ark. 1114, 593 S.W.2d 502 (1980).

A void judgment amounts to nothing and has no force as res judicata.” Arkansas State Highway Commission v. Coffelt, 301 Ark. 112, 782 S.W.2d 45 (1990)

A void judgment cannot provide valid notice for a subsequent proceeding in circuit court. Rector v. State, 6 Ark. 187 (1845).

Tennessee

U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell  110 F.R.D. 382 (S.D.N.Y. 1986): “A void judgment is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgment, which want of jurisdiction may be either of the person, or of the subject-matter generally, or of the particular question attempted to be decided or the relief assumed to be given. (Citations omitted). 160 Tenn. at 336, 24 S.W.2d at 883. “A void judgment lacks validity anywhere and is subject to attack from any angle.” State ex rel. Ragsdale v. Sandefur, 215 Tenn. 690, 701, 389 S.W.2d 266, 271 (1965); Acuff v. Daniel, 215 Tenn. 520, 525, 387 S.W.2d 796, 798 (1965).

Colorado

Ordinarily, the decision whether to grant relief under C.R.C.P. 60(b) is entrusted to the sound discretion of the trial court. However, “a motion under [C.R.C.P. 60(b)(3)] differs markedly from motions under the other clauses of [C.R.C.P. 60(b)].” 10A Wright, § 2862, at 322-24. If the surrounding circumstances indicate that the defaulting party’s due process right was unfairly compromised by lack of notice of the default proceeding, then relief under C.R.C.P. 60(b)(3) is mandatory. See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) (holding that under Fed. R. Civ. Pro. 60(b)(4) it is a per se abuse of discretion for a lower court to uphold a void judgment); V.T.A., Inc., 597 F.2d at 224 & n.8 (“If voidness is found, relief is not a discretionary matter; it is mandatory.”); Small v. Batista, 22 F. Supp.2d 230, 231 (S.D.N.Y. 1998) (“[U]nlike other motions made pursuant to the other subsections of Rule 60(b), the court lacks discretion with respect to a motion made under Rule 60(b)(4). Accordingly, our review of motions for relief under C.R.C.P. 60(b)(3) is de novo. See Carter, 136 F.3d at 1005. Relief under C.R.C.P. 60(b)(3) is mandatory because a void judgment “is one which, from its inception, was a complete nullity and without legal effect.” Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972); see also Weaver Constr., 190 Colo. at 232, 545 P.2d at 1045 (“It is an elementary principle of due process that where [a default judgment is obtained without service of process] . . . the underlying judgment must be vacated in the first instance, as a void judgment cannot be allowed to remain in effect pending the outcome of a trial on the merits.”) (emphasis added). Consequently, there is no judgment the propriety of which a court can review. Whether the judgment is void for failure to provide notice in compliance with C.R.C.P. 55(b) depends on whether the factual circumstances surrounding the default proceeding indicate that the defaulting party was nonetheless aware that a default judgment was sought against it and that the defaulting party had sufficient opportunity to be heard. C.R.C.P. 55(b) sets forth the due process expectations of a party against whom a default judgment is sought. If the notice provisions of C.R.C.P. 55(b) are not adhered to, then the presumption arises that the defaulting party has suffered a due process violation that renders the judgment against it void. However, before a judgment is set aside as void under C.R.C.P. 60(b)(3), reviewing courts should carefully examine whether, though the literal requirements of C.R.C.P. 55(b) were not adhered to, the defaulting party was nonetheless aware of the default proceedings and was afforded a sufficient opportunity to be heard in defense. If there is substantial evidence that the defaulting party had adequate notice of the default proceedings despite failure of the moving party to comply with Rule 55(b), then the purposes of Rule 55(b) are achieved and there is no basis for voiding the judgment. First National Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 05/30/2000). Although defendant has now made an appearance in this action and is subject to the jurisdiction of the court from the date he did so, his post-judgment appearance is not retroactive and does not serve to validate the void judgment. See Weaver Construction Co. v. District Court. We also reject plaintiff’s argument that defendant’s C.R.C.P. 60(b)(3) motion was untimely. To the contrary, a void judgment may be challenged at any time pursuant to C.R.C.P. 60(b)(3), and must be vacated upon request. See United Bank v. Buchanan, 836 P.2d 473 (Colo. App. 1992). We have considered the effect of a void judgment on numerous occasions and have consistently held that a Judgement entered where a jurisdictional defects exist is a nullity. See, e.g., People v. Dillon, 655 P.2d 841 (Colo. 1982) (“It is axiomatic that any action taken by a court when it lacked jurisdiction is a nullity.” Davidson Chevrolet, Inc. v. City and County of Denver, 138 Colo. 171, 330 P.2d 1116 (1958) (same), cert. denied 359 U.S. 926, 3 L. Ed. 2d 629, 79 S. Ct. 609 (1959); see also In re Marriage of Pierce, 720 P.2d 591 (Colo. App. 1985) (same). The issue presented here was addressed by this court in Don J. Best Trust v. Cherry Creek National Bank, 792 P.2d 302 (Colo. App. 1990). In that case, a division of this court concluded that a judgment entered against a garnishee which was void because the writ of garnishment was facially insufficient could be attacked at any time. The court there stated: “This Conclusion is based upon the consideration that a void judgment is no judgment at all and, therefore, that the ‘reasonable time’ requirement of the rule ‘means in effect, no time limitation.'” See Mathews v. Urban, 645 P.2d 290 (Colo. App. 1982). But see Martinez v. Dixon, 710 P.2d 498 (Colo. App. 1985)” (“the clear language of C.R.C.P. 60(b) requires that the motion must be filed within [a] reasonable time if it alleges that the judgment is void”). However, it has been determined that the doctrine of laches cannot be relied upon to preclude an attack upon a void judgment. Thompson v. McCormick, 138 Colo. 434, 335 P.2d 265 (1959). Further, we have held that, if the judgment sought to be vacated is void because the court lacked subject matter jurisdiction, any time limit established by C.R.C.P. 60(b) is inapplicable. Mathews v. Urban, 645 P.2d 290 (Colo. App. 1982).  It has long been established as basic law that the validity of a judgment depends upon the court’s jurisdiction of the person and of the subject matter of the particular issue it assumes to decide. Considering what is meant by the term “jurisdiction” it is well settled that this term includes the court’s power to enter the judgment, and the entry of a decree which the court has no authority to enter is without jurisdiction and void. A void judgment may be attacked directly or collaterally. Newman v. Bullock, 23 Colo. 217, 47 Pac. 379; Atchison, Topeka and Santa Fe Railway Co. v. Board of County Commissioners, 95 Colo. 435, 37 P (2d). The defendants, Ivan and Molly Jenkins, appeal from a judgment of the Denver District Court holding them liable to the plaintiff, Merchants Mortgage & Trust Corporation, on a promissory note. The defendants challenge the judgment solely on the ground that the trial judge had no authority to decide the case after he had taken office as a judge of the Colorado Court of Appeals. We agree that the judgment is void, and we remand the case to the district court for further proceedings. Merchants Mortgage & Trust Corporation filed a complaint in Denver District Court to collect on a promissory note executed by the defendants. The case was tried to the court before the Honorable Howard M. Kirshbaum on November 8 and 9, 1979. After trial, the judge took the matter under advisement. He was later appointed to the Colorado Court of Appeals and was sworn in as a judge of that court on January 11, 1980. On May 5, 1980, Judge Kirshbaum issued written findings of fact and conclusions of law and ordered judgment against the defendants. The defendants did not immediately challenge the judge’s authority to act, but instead filed a motion for a new trial on other grounds on May 27, 1980. The plaintiff also filed a post-trial motion, seeking to alter or amend the judgment to allow recovery of its costs and attorney fees. On November 14, 1980, Chief Justice Paul V. Hodges issued an order pursuant to Colo. Const. Art. VI, § 5(3) appointing Judge Kirshbaum to hear and rule on the post-trial motions. The defendants then filed two additional motions, entitled “Objection to Jurisdiction” and “Motion to Void Judgment.” In the first motion, the defendants asked that Judge Kirshbaum decline to hear any post-judgment motions, arguing that Colo. Const. Art. VI, § 5(3) does not authorize the chief justice to assign a court of appeals judge to perform judicial duties in a district court. In the second motion, they contended that the judgment of May 5, 1980, was void for lack of jurisdiction, again because the Colorado Constitution does not allow a court of appeals judge to be assigned to sit as a district court judge. On January 8, 1981, Judge Kirshbaum recused himself, and the case was reassigned to Denver District Judge Harold D. Reed to hear and determine all post-trial motions. Judge Reed denied the defendants’ motions to void the judgment and for a new trial, and granted the plaintiff’s motion to alter or amend the judgment to include its costs and attorney fees. The defendants then brought this appeal. We conclude that the May 5, 1980, judgment is void and must be vacated Absent constitutional or statutory authorization, a former district court judge does not have authority to act in a judicial capacity, and orders entered by such a person after he ceases to be a district court judge are void. See Olmstead v. District Court,157 Colo. 326,403 P.2d 442(1965) (a district court judge whose term of office has expired lacks power to entertain a post-trial motion although he heard legal argument on the motion while still a judge). When Judge Kirshbaum made his decision, neither this court nor the chief justice had authorized such action. Since the chief justice’s order of November 14, 1980, was expressly limited to the post-trial motions filed after the May 5, 1980, judgment, it provides no authority to support the judge’s May 5 action. Because the judgment is void, the plaintiff’s argument that the judgment should not be reversed because of procedural error having no prejudicial effect on the parties is inapposite. We also reject the plaintiff’s argument that the defendants should be estopped from challenging the validity of the judgment because they acquiesced in its effectiveness until the chief justice’s order was issued several months later. The plaintiff’s reliance on In Re Estate of Lee v. Graber,170 Colo. 419,462 P.2d 492(1969) for its estoppel argument is misplaced. In that case, we held that a person who invokes the jurisdiction of a court, obtains a decree, and acquiesces in the judgment for several years cannot assert its invalidity in a later action on the basis that the first court had exceeded its authority because the amount in controversy exceeded its jurisdictional limit. On the facts before us, we decline to extend the holding of Lee v. Graber to a situation where the defendant challenges the judgment on the ground that the judge had no power to order it. We held in Olmstead v. District Court, supra, that the parties by their actions cannot confer power on a former judge who has no authority to act.157 Colo. at 330,403 P.2d at 443. Merchants Mortgage & Trust Corp. v. Ivan R., 659 P.2d 690 (Colo. 03/07/1983). A void judgment, it has no efficacy and may be treated as a nullity. A void judgment is vulnerable to a direct or collateral attack regardless of the lapse of time. A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it. Defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or the relief to be granted. A judgment entered where such defect exists has neither life nor incipience, and a court is impuissant to invest it with even a fleeting spark of vitality, but can only determine it to be what it is — a nothing, a nullity. Being naught, it may be attacked directly or collaterally at any time. Stubbs v. McGillis, 44 Colo. 138, 96 Colo. 1005, 130 Am.S.R. 116, 18 L.R.A. N.S. 405.  In Anderson v. Colorado Department of Revenue, 44 Colo. App. 157, 615 P.2d 51 (1980) we held that a jurisdictional challenge to a conviction may be raised at a driver’s license revocation hearing because a void judgment is subject to attack directly or collaterally at any time. Likewise, since a conviction based on a guilty plea accepted in violation of Crim. P. 11(b) is constitutionally infirm, it may be challenged in a later proceeding to impose a statutory liability, see People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979), and such a challenge may also be raised at a license revocation hearing.

Nevada

NRCP 60(b)(3) allows a party to move for relief from a judgment which is void, and while motions made under NRCP 60(b) are generally required to “be made within a reasonable time” and to be adjudicated according to the district court’s discretion, this is not true in the case of a void judgment. Necessarily a motion under this part of the rule differs markedly from motions under the other clauses of Rule 60(b). There is no question of discretion on the part of the court when a motion is made under [this portion of the Rule]. Nor is there any requirement, as there usually is when default judgments are attacked under Rule 60(b), that the moving party show that he has a meritorious defense. Either a judgment is void or it is valid. Determining which it is may well present a difficult question, but when that question is resolved, the court must act accordingly. By the same token, there is no time limit on an attack on a judgment as void. . . . [E]ven the requirement that the motion be made within a “reasonable time,” which seems literally to apply . . . cannot be enforced with regard to this class of motion. Understandably, the parties were not attuned to our recent Jacobs decision during oral argument. Accordingly, it was determined at that time to allow the parties to supplement their briefs in order to determine with certainty whether, in fact, no default had been entered against Garcia prior to the entry of the default judgment. Garcia’s supplemental material supplied additional evidence that no default was ever entered, including an affidavit by Clark County Court Clerk Loretta Bowman attesting that no such filing exists in the case file. Respondents also acknowledged that no default was ever entered but argue in their supplemental brief that Jacobs should not be applied retroactively, noting that the default judgment at issue herein was entered prior to our Jacobs decision. This argument is without merit. The court in Jacobs determined, consistent with law from other jurisdictions, that the default judgment entered in Jacobs was void. We accordingly ordered the district court to grant relief from the void judgment, despite the fact that the ruling in Jacobs was, of course, preceded by entry of the default judgment against Jacobs. If this case, rather than Jacobs, were before us as a case of first impression, we would have reached the same conclusion. A void judgment is void for all purposes and may not be given life under a theory based upon lack of legal precedent. Garcia v. Ideal Supply Co., 110 Nev. 493, 874 P.2d 752 (Nev. 5/19/1994). The defective service rendered the district court’s personal jurisdiction over Gassett invalid and the judgment against her void. For a judgment to be void, there must be a defect in the court’s authority to enter judgment through either lack of personal jurisdiction or jurisdiction over subject matter in the suit. Puphal v. Puphal, 669 P.2d 191 (Idaho 1983). In Price v. Dunn, 106 Nev. 100, 787 P.2d 785 (1990). We now hold that the filing of a motion to set aside a void judgment previously entered against the movant shall not constitute a general appearance. See, e.g., Dobson v. Dobson, 108 Nev. 346, 349, 830 P.2d 1336, 1338 (1992). Nonetheless, since the order was void, a judgment based thereon would likewise be void.. Nelson v. Sierra Constr. Corp., 77 Nev. 334, 364 P.2d 402. Under NRCP 60(b) a motion to set aside a void judgment is not restricted to the six months’ period specified in the rule. NRCP 54(a) provides that the word “judgment” as used in these rules includes any order from which an appeal lies. Therefore there is no merit to appellants’ contention that the motion to vacate the judgment was not timely made. Foster v. Lewis, 78 Nev. 330, 372 P.2d 679 (Nev. 6/19/1962). A void judgment is subject to collateral attack; a judgment is void if the issuing court lacked personal jurisdiction or subject matter jurisdiction; See 49 C.J.S. Judgments § 401, at 792 (1947 & supp. 1991); 46 Am.Jur.2d Judgments §§ 621-56 (1969 & supp. 1991).

New Mexico

If a court’s decision is plainly contrary to a statute or the constitution, the court will be held to have acted without power or jurisdiction, making the judgment void for Rule 1-060(B) purposes, even if the court had personal and subject-matter jurisdiction. See, e.g., United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1317 (7th Cir. 1995) (forfeiture statute required that complaint be filed within sixty days of certain action; failure to meet that deadline meant that court had no power to order forfeiture, and its order was void); Watts v. Pinckney, 752 F.2d 406, 409 (9th Cir. 1985) (after judgment awarded, defendant paid, then found out this was action in admiralty that should have been brought solely against United States; court held that judgment was void); Compton v. Alton S.S. Co., 608 F.2d 96, 104 (4th Cir. 1979) (judgment by default awarded penalty wages under inapplicable statute; court held that judgment was void, not just erroneous); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979) (noting that judgment can be void if court’s action involves a “plain usurpation of power”); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963) (court had no power to impose unconstitutional prior restraint on publication of true statements, so thirty-year-old consent judgment was void). In APCA, APCA as a defendant filed a cross-claim against defendant Martinez, but it was void because not served on Martinez. On February 28, 1968, entry of judgment was made on APCA’s cross-claim against Martinez. Four years later, Martinez’ heirs moved to set aside the APCA judgment under Rule 60(b) and in December, 1972, the 1968 judgment was set aside because it was void. No time limit applies where a void judgment is entered. Albuquerque Prod. Credit @#!*% ‘n v. Martinez, 91 N.M. 317, 573 P.2d 672 (1978). Since the 1973 judgment was void, the 1976 district court was required to set it aside pursuant to N.M.R. Civ.P. 60(b)(4) [§ 21-1-1(60)(b)(4)], N.M.S.A. 1953 (Repl. Vol.1970). There is no discretion on the part of a district court to set aside a void judgment. Such a judgment may be attacked at any time in a direct or collateral action. Chavez v. County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974). At this point we call attention also to language found in the opinion in Moore v. Packer, 174 N.C. 665, 94 S.E. 449, 450, noticed by us and quoted with approval in the Ealy case. It was there said: “A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” All the appellees rely upon this general rule in answer to appellants’ challenge that they never took an appeal from the order and judgment setting aside the June, 1937 default judgment and decree. The court being without jurisdiction to set aside its earlier judgment and decree, quieting title, appellees might ignore it as a void order or judgment, they say, and for this reason were not required to take an appeal therefrom, and may question the jurisdiction of the court and the validity of the order or judgment at any time. Board of County Commissioners of Quay County v. Wasson, 37 N.M. 503, 24 P.2d 1098; Fullen v. Fullen, 21 N.M. 212, 153 P. 294; Baca v. Perea, 25 N.M. 442, 184 P. 482; De Baca v. Wilcox, 11 N.M. 346, 68 P. 922. In the case of Upjohn Co. v. Board of Commissioners of Socorro County (Stephenson, Intervener) 25 N.M. 526, 185 P. 279, 280, we held a judgment against a garnishee void where service of the writ of garnishment was made by a person other than the sheriff, where we said: “The proceeding is wholly statutory, and compliance with the statute is essential to confer upon the court jurisdiction of the res.” And held that the court was vested with power to set aside and vacate such void judgment at any time. A void judgment is one that has merely semblance, without some essential element or elements, as where the court purporting to render it has not jurisdiction. An irregular judgment is one entered contrary to the course of the court, contrary to the method of procedure and practice under it allowed by law in some material respect, as if the court gave judgment without the intervention of a jury in a case where the party complaining was entitled to a jury trial, and did not waive his right to the same. Vass v. Building Association, 91 N. C. 55; McKee v. Angel, 90 N. C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked collaterally at all, but it must remain and have effect until by appeal to a court of errors it shall be reversed or modified. An irregular judgment may originally and generally be set aside by a motion for the purpose in the action. This is so because in such case a judgment was entered contrary to the course of the court by inadvertence, mistake, or the like. A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void it may and will be ignored everywhere, and treated as a mere nullity.” Moore v. Packer, 174 N. C. 665, 94 S. E. 449, at page 450.  [T]he applicable ground [for relief] would be Rule 60(B)(4), void judgment, under which the failure to move to vacate within one year after the entry of judgment would not be controlling. Classen v. Classen, 119 N.M. 582, 893 P.2d 478, 34 N.M. St. B. Bull. 24 (N.M.App. 02/27/1995). The appellants contend that the court lost jurisdiction over the action thirty days after the judgment was vacated. They argue that the appellees never appealed the order which vacated the judgment, consequently, thirty days later the court was divested of authority to entertain any motion concerning these parties and the same cause of action, and that for these reasons the motion to amend the cross-claim was improperly granted. This point is not well-taken. The pertinent portions of Rule 60(b) state: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:… (4) the judgment is void…. An order granting a motion for relief under 60(b) must be tested by the usual principles of finality; and when so tested will occasionally be final, although probably in most cases it will not be. Thus where the court, in addition to determining that there is a valid ground for relief under 60(b), at the same time makes a re-determination of the merits, its order is final since it leaves nothing more to be adjudged…. Since Martinez never received notice of the cross-claim, the stipulated judgment was void as to him. Therefore, it was completely proper for his heirs to move to set aside that void judgment under Rule 60(b)(4). When the original judgment was vacated as to Martinez, the status of the case was as though no judgment had been entered as to him. Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (1972); Benally v. Pigman, 78 N.M. 189, 429 P.2d 648 (1967); Arias v. Springer, 42 N.M. 350, 78 P.2d 153 (1938). Rule 60(b) of the Rules of Civil Procedure abolishes the common law writ of coram nobis but authorizes relief from a “final judgment, order, or proceeding” on six specified grounds. Ground (2) involves newly discovered evidence; ground (4) involves a void judgment; and ground (6) involves “any other reason justifying relief”. Although Rule 60(b) is a civil rule, State v. Romero, supra, held that where a prisoner had served his sentence and had been released, this civil rule could be utilized to seek relief from a criminal judgment claimed to be void. This result was based on an intent to retain all substantive rights protected by the old writ of coram nobis. See State v. Raburn, supra; Roessler v. State, 79 N.M. 787, 450 P.2d 196 (Ct. App. 1969), cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969). Continuing jurisdiction over final judgment. The judgment entered on April 25 was a final judgment. The City argues that Brooks could obtain relief from the writ issued on May 1 only under SCRA 1986, 3-704(B) (Repl. Pamp. 1990), which limits relief to (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud, misrepresentation or other misconduct; (3) a void judgment; or (4) satisfaction, release or discharge of the judgment or the reversal or vacation of a prior judgment upon which it is based. However, NMSA 1978, Section 34-8A- 6(E) (Repl. Pamp. 1990), states that “All judgments rendered in civil actions in the metropolitan court shall be subject to the same provisions of law as those rendered in district court.” Under NMSA 1978, Section 39-1-1 (Repl. Pamp. 1991), final judgments and decrees entered by the district courts remain under the control of such courts for thirty days after entry thereof. Therefore, the metropolitan court retained control of its judgment and had the right to set it aside after granting a rehearing on the matter. See, e.g., Nichols v. Nichols, 98 N.M. 322, 326, 648 P.2d 780, 784 (1982) (district court is authorized under Section 39-1-1 to change, modify, correct or vacate a judgment on its own motion) (citing Desjardin v. Albuquerque Nat’l Bank, 93 N.M. 89, 596 P.2d 858 (1979)).  The fact that the void judgment has been affirmed on review in an appellate court or an order or judgment renewing or reviving it entered adds nothing to its validity. Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant.” WALLS v. ERUPCION MIN. CO. 6 P.2d 1021 November 3, 1931.

North Carolina

And if the court has no jurisdiction over the subject matter of the action, the judgment in the action is void. A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.” It is well established law that a void judgment is no judgment, is a nullity without life or force, no rights can be based thereon, and it can be attacked collaterally by anyone whose rights are adversely affected by it. Reid v. Bristol, 241 N.C. 699, 86 S.E.2d 417; Casey v. Barker. Although Rule 60(b) contains the requirement that all motions made pursuant thereto be made “within a reasonable time,” the requirement is not enforceable with respect to motions made pursuant to Rule 60(b)(4), because a void judgment is a legal nullity which may be attacked at any time. 11 Wright and Miller, Federal Practice and Procedure: Civil §§ 2862, 2866 (1973). If the judgment of divorce from bed and board at issue in the present case is void, then, as with any other void judgment, it establishes no legal rights and may be vacated without regard to time. Cunningham v. Brigman, 263 N.C. 208, 139 S.E.2d 353 (1964). Our Supreme Court has described a void judgment as “one which has a mere semblance but is lacking in some of the essential elements which would authorize the court to proceed to judgment.” Monroe v. Niven, 221 N.C. 362, 364, 20 S.E.2d 311, 312 (1942). “When a court has no authority to act its acts are void.”  If the court was without authority, its judgment . . . is void and of no effect. A lack of jurisdiction or power in the court entering a judgment always avoids the judgment, and a void judgment may be attacked whenever and wherever it is asserted, without any special plea.  Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952),  Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956). ). A void judgment, however, binds no one and it is immaterial whether the judgment was or was not entered by consent. Hanson, supra. “[I]t is well settled that consent of the parties to an action does not confer jurisdiction upon a court to render a judgment which it would otherwise have no power or jurisdiction to render.” Saunderson, supra at 172, 141 S.E. at 574. Laches is an equitable doctrine and ordinarily should not be a defense to a motion to open a judgment that is void. 46 Am. Jur. 2d Judgments § 752 (1969). In Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26 (1944), plaintiff sought to have a tax foreclosure sale declared invalid for want of proper service of process. In deciding for the plaintiff, the court stated, “It is likewise elementary that unless one named as a defendant has been brought into court in some way sanctioned by law . . ., the court has no jurisdiction of the person and judgment rendered against him is void.” Id. at 70, 71, 29 S.E.2d at 28. The court in Powell also examined whether such a judgment was subject to a collateral attack. “No statute of limitations runs against the plaintiffs’ action by reason of the judgment of foreclosure, and laches, if any appeared, is no defense.” Id. at 71, 29 S.E.2d at 29; see Page v. Miller and Page v. Hynds, 252 N.C. 23, 113 S.E.2d 52 (1960). Time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.” Monroe v. Niven, 221 N.C. 362, 365, 20 S.E.2d 311, 313 (1942). “A nullity is a nullity, and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no exception.” If there be a defect, e.g., a total want of jurisdiction apparent upon the face of the proceedings, the court will of its own motion, ‘stay, quash, or dismiss’ the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment . . . so, (out of necessity) the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceedings. 238 N.C. at 646, 78 S.E.2d at 717-18. A void judgment is not a judgment at all, and it may always be treated as a nullity because it lacks an essential element of its formulation. See Clark v. Carolina Homes, Inc., 189 N.C. 703, 128 S.E. 20 (1925). When a purported consent judgment is void because the consent is by an attorney who has no authority to consent thereto, the party for whom the attorney purported to act is not required to show a meritorious defense in order to vacate such void judgment. Bath v. Norman, 226 N.C. 502, 505, 39 S.E.2d 363. Where there is no service of process, the court has no jurisdiction, and its judgment is void. A void judgment is a nullity, and no rights can be based thereon. Collins v. Highway Com., 237 N.C. 277, 74 S.E.2d 709; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 “‘The passage of time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.’ 31 Am. Jur., 66; Anno. 81 A.S.R., 559,” Now 30-A Am. Jur., 170. Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311. See also Com’rs. of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144. A void judgment is without life or force, and the Court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” (Our Italics.) Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554; Mills v. Richardson, supra. See McIntosh, N.C.P.&P;, Secs. 651, 652 and 653. Quoting from Boone v. Sparrow, supra, “A void judgment is not a judgment and may always be treated as a nullity . . . it has no force whatever; it may be quashed ex mero motu. Clark v. Homes, 189 N.C. 703, 128 S.E. 20.” And quoting from the latter, “A void judgment is not a judgment and may always be treated as a nullity. It lacks some essential element; it has no force whatever; it may be quashed ex mero motu. Stallings v. Gully, 48 N.C. 344; McKee v. Angel, 90 N.C. 60; Carter v. Rountree, 109 N.C. 29; Mann v. Mann, 176 N.C. 353; Moore v. Packer, 174 N.C. 665.” A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” (Emphasis added.) The later decisions are in full accord: Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554. See McIntosh, N.C. P. & P. 734-737. A party who is subject to an order by a trial court which is void, may attack that order at any time, pursuant to Rule 60(b)(4) of the Rules of Civil Procedure. N.C.G.S. § 1A-1, Rule 60(b) (1990); Allred, 85 N.C. App. at 141, 354 S.E.2d at 294 (void judgment is legal nullity which may be attacked at any time). A Void judgment . . . binds no one and it is immaterial whether the judgment was . . . entered by consent.” Id. at 144, 354 S.E.2d at 295. Rule 60(b)(4) provides that a court may relieve a party from a judgment if it is void. N.C. Gen. Stat. § 1A-1, Rule 60(b)(4)(1990). A void judgment is a nullity which may be attacked at any time. Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987). If a court has no jurisdiction over the subject matter, the judgment is void. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700, 702 (1976). A void judgment resembles a valid judgment, but lacks an essential element such as jurisdiction or service of process. Windham Distributing Co., Inc. v. Davis, 72 N.C. App. 179, 323 S.E.2d 506 (1984), disc. rev. denied, 313 N.C. 613, 330 S.E.2d 617 (1985). A judgment is not void if “‘the court had jurisdiction over the parties and the subject matter and had authority to render the judgment entered.'” Id. at 181-182, 323 S.E.2d at 508 (quoting In re Brown, 23 N.C. App. 109, 110, 208 S.E.2d 282, 283 (1974)). It should be noted that since the Judgment entered by Judge Griffin on 18 March 1992 is void, no final judgment on the merits has been entered in this case. Any attempt by the defendants to appeal from that void judgment then, is inconsequential, and any errors made in attempting such appeal are without lasting significance. The plaintiff may raise a collateral attack on the order taxing costs as a defense to defendant’s motion to dismiss only if the order taxing costs was void ab initio. State v. Sams, 317 N.C. 230, 345 S.E.2d 179 (1986); Stroupe v. Stroupe, 301 N.C. 656, 273 S.E.2d 434 (1981); Lumber Co. v. West, 247 N.C. 699, 102 S.E.2d 248 (1958); Massengill v. Lee, 228 N.C. 35, 44 S.E.2d 356 (1947); Edwards v. Brown’s Cabinets, 63 N.C. App. 524, 305 S.E.2d 765 (1983); Manufacturing Co. v. Union, 20 N.C. App. 544, 202 S.E.2d 309, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974); but see Thornburg v. Lancaster, 303 N.C. 89, 277 S.E.2d 423 (1981); contra In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, disc. rev. denied, 315 N.C. 184, 337 S.E.2d 859 (1985). In State v. Sams, 317 N.C. 230, 235-36, 345 S.E.2d 179, 182-83, this Court stated that [a]n order is void ab initio only when it is issued by a court that does not have jurisdiction. Such an order is a nullity and may be attacked either directly or collaterally, or may simply be ignored.  North Carolina allows for collateral attacks. See Daniels v. Montgomery Mutual Insurance Co., 320 N.C. 669, 360 S.E.2d 772 (N.C. 10/07/1987). A void judgment, however, binds no one. Its invalidity may be asserted at any time and in any action where some benefit or right is asserted thereunder. A judgment is void if the court rendering it does not have jurisdiction either of the asserted cause of action or of the parties. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460; Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802; Clark v. Homes, 189 N.C. 703, 128 S.E. 20; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716.

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