Opinion by
MATHEWS, 0.
(after stating the facts as above). Unless the judgment entered against defendant by default was absolutely void, no relief can be granted it. The statutes prescribe the procedure to be followed to have judgments vacated, and one seeking such relief must comply with the prescribed statutory procedure. It will be noted the judgment complained of was entered on the 7th day of February, 1913, and
defendant’s attorney was apprised of that fact the next day. That term of court expired on the last day of that month, but the motion to vacate the judgment was not filed until March 24, 1913. Section 5035, Rev. Laws 1910, prescribes the time when the application for a new trial must be made and is as follows:
“The application for a new trial must be made at the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the ¡trial, or impossibility of making a case-made, shall be within three days after the verdict or decision was rendered unless unavoidably prevented.”
Section 5267, Rev. Laws 1910, prescribes the grounds and procedure for vacating and modifying judgments in ¡the district court, and is as follows:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment. or order was made: First. By granting a new trial for the cause, within the time and in the manner prescribed in section 5035. Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in section 4728. Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining the judgment or order. Fourth. For fraud, practiced 'by the successful party, in obtaining the judgment or order. Fifth. For erroneous proceedings against an infant, or a person of unsound mind, -where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth. For the death of one of the parties before the judgment in the action. Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth. For errors in a judgment, shown by an infant in twelve- months after arriving at full age, as prescribed in section 5142. Ninth. For ¡taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.”
In the case of Hawkins v. Hawkins, 52 Okla. 786, 153 Pac. 844, this court, in discussing this statute, said:
“This statute has been frequently construed by this court and the law is well settled that, while great discretion is allowed the trial court in' the control of its judgments and orders, and in the exercise of its power to vacate or modify the same at the term at which the same were rendered or made, yet the court is without jurisdiction, at a subsequent-term, to take any steps towards vacating or modifying a judgment or order of the court, unless there is a substantial compliance with the terms of the statute. McAdams v. Latham, 21 Okla. 511, 96 Pac. 584. In the case last cited plaintiff had judgment at the same term, but after the statutory time for filing a motion for new trial had expired,- the court permitted a motion for new trial to be filed, and granted defendant a new trial of the cause. At a succeeding term, upon the motion of the plaintiff, the trial court set aside the order granting a new trial of the cause. This court in passing upon the correctness of the last order says: ‘The plaintiff failing to appeal from the order granting a new trial, after the expiration of the ¡term at which final judgment was entered, there must be a substantial compliance with the statute to give the court further jurisdiction to modify, vacate, or s.et aside any judgment rendered at a preceding term.’ McKee v. Howard, 38 Okla. 422, 134 Pac. 44; Lookabaugh v. Cooper, 5 Okla. 102, 48 Pac. 99; Long v. Board of County Commissioners, 5 Okla. 128, 47 Pac. 1063; Anderson v. Chrisman, 37 Okla. 73, 130 Pac. 539.”
The defendant has failed to bring its case within the provisions of section 5035, Rev. Laws 1910, because his motion was not made until after the term in which the judgment was rendered had lapsed. Neither does it come within the provisions of section 4728. Nor was there any irregularity in obtaining the verdict shown, and the conduct of the clerk did no.t occasion it. No fraud upon the part of the plaintiff was advanced as a reason for the default, and the facts shown at the hearing did not disclose any unavoidable casualty or misfortune justifying the default. In fact the defendant did not, bring itself within any of the provisions laid down in said section 5267.
The only excuse for not pleading to the amended petition within the 20 days given it for that purpose, as shown by the affidavit filed at the hearing, was that the attorney was absent from his office in the discharge of his professional duties in other matters, and mistook the date of the expiration of time given him to plead, and that he understood that the cause would not be assigned for trial at said February term. It is plainly apparent that this is not a sufficient showing to authorize the vacating of a judgment after the term had adjourned. If ,the same had been filed within the term while the court still had discretionary power over the judgment, no doubt the court would, and perhaps should, have vacated the same upon the showing made, but after the term had lapsed the court could act only as authorized by statute and within the provi-
Bions
of
the
statute, and the ruling of the court in refusing to vacate the verdict was correct and must be sustained unless relief can be obtained under section 5274, Rev. Laws 1910, which, as far as applicable, reads as follows:
“A void judgment may he vacated at any time, on motion of a party, or any person affected thereby.”
It was held in Spies v. Stone, 40 Okla. 542, 139 Pac. 951, that “a void judgment may be vacated at any time on motion of any interested party.” The fact that the term of court at which the judgment was rendered had expired does not serve to give a void judgment any standing. It may be attacked at any time upon motion or collat erally. Wheatland Grain & Lumber Co. et al. v. Dowden, 26 Okla. 441, 110 Pac. 898; Harding v. Gillett et al., 25 Okla. 199, 107 Pac. 665; Nicoll et ux. v. Midland Savings & Loan Co., 21 Okla. 591, 96 Pac. 744; Anglea v. McMaster et al., 17 Okla. 501, 87 Pac. 660; In the Matter of the Application of Frank McMasters for a Writ of Habeas Corpus, 9 Okla. 432, 60 Pac. 280.
Counsel for defendant,' who did not represent it at the time the default occurred, has filed an able and exhaustive brief, and therein raises many legal points against the validity of .the judgment, and we are Quite sure that several of the grounds urged here would have been amply sufficient to have defeated the judgment if the same had been timely interposed before the default, but we are convinced that none of the same can rescue the defendant from the judgment, unless it be the one advanced that the judgment is void for want of jurisdiction.
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Opinion by
MATHEWS, 0.
(after stating the facts as above). Unless the judgment entered against defendant by default was absolutely void, no relief can be granted it. The statutes prescribe the procedure to be followed to have judgments vacated, and one seeking such relief must comply with the prescribed statutory procedure. It will be noted the judgment complained of was entered on the 7th day of February, 1913, and
defendant’s attorney was apprised of that fact the next day. That term of court expired on the last day of that month, but the motion to vacate the judgment was not filed until March 24, 1913. Section 5035, Rev. Laws 1910, prescribes the time when the application for a new trial must be made and is as follows:
“The application for a new trial must be made at the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the ¡trial, or impossibility of making a case-made, shall be within three days after the verdict or decision was rendered unless unavoidably prevented.”
Section 5267, Rev. Laws 1910, prescribes the grounds and procedure for vacating and modifying judgments in ¡the district court, and is as follows:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment. or order was made: First. By granting a new trial for the cause, within the time and in the manner prescribed in section 5035. Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in section 4728. Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining the judgment or order. Fourth. For fraud, practiced 'by the successful party, in obtaining the judgment or order. Fifth. For erroneous proceedings against an infant, or a person of unsound mind, -where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth. For the death of one of the parties before the judgment in the action. Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth. For errors in a judgment, shown by an infant in twelve- months after arriving at full age, as prescribed in section 5142. Ninth. For ¡taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.”
In the case of Hawkins v. Hawkins, 52 Okla. 786, 153 Pac. 844, this court, in discussing this statute, said:
“This statute has been frequently construed by this court and the law is well settled that, while great discretion is allowed the trial court in' the control of its judgments and orders, and in the exercise of its power to vacate or modify the same at the term at which the same were rendered or made, yet the court is without jurisdiction, at a subsequent-term, to take any steps towards vacating or modifying a judgment or order of the court, unless there is a substantial compliance with the terms of the statute. McAdams v. Latham, 21 Okla. 511, 96 Pac. 584. In the case last cited plaintiff had judgment at the same term, but after the statutory time for filing a motion for new trial had expired,- the court permitted a motion for new trial to be filed, and granted defendant a new trial of the cause. At a succeeding term, upon the motion of the plaintiff, the trial court set aside the order granting a new trial of the cause. This court in passing upon the correctness of the last order says: ‘The plaintiff failing to appeal from the order granting a new trial, after the expiration of the ¡term at which final judgment was entered, there must be a substantial compliance with the statute to give the court further jurisdiction to modify, vacate, or s.et aside any judgment rendered at a preceding term.’ McKee v. Howard, 38 Okla. 422, 134 Pac. 44; Lookabaugh v. Cooper, 5 Okla. 102, 48 Pac. 99; Long v. Board of County Commissioners, 5 Okla. 128, 47 Pac. 1063; Anderson v. Chrisman, 37 Okla. 73, 130 Pac. 539.”
The defendant has failed to bring its case within the provisions of section 5035, Rev. Laws 1910, because his motion was not made until after the term in which the judgment was rendered had lapsed. Neither does it come within the provisions of section 4728. Nor was there any irregularity in obtaining the verdict shown, and the conduct of the clerk did no.t occasion it. No fraud upon the part of the plaintiff was advanced as a reason for the default, and the facts shown at the hearing did not disclose any unavoidable casualty or misfortune justifying the default. In fact the defendant did not, bring itself within any of the provisions laid down in said section 5267.
The only excuse for not pleading to the amended petition within the 20 days given it for that purpose, as shown by the affidavit filed at the hearing, was that the attorney was absent from his office in the discharge of his professional duties in other matters, and mistook the date of the expiration of time given him to plead, and that he understood that the cause would not be assigned for trial at said February term. It is plainly apparent that this is not a sufficient showing to authorize the vacating of a judgment after the term had adjourned. If ,the same had been filed within the term while the court still had discretionary power over the judgment, no doubt the court would, and perhaps should, have vacated the same upon the showing made, but after the term had lapsed the court could act only as authorized by statute and within the provi-
Bions
of
the
statute, and the ruling of the court in refusing to vacate the verdict was correct and must be sustained unless relief can be obtained under section 5274, Rev. Laws 1910, which, as far as applicable, reads as follows:
“A void judgment may he vacated at any time, on motion of a party, or any person affected thereby.”
It was held in Spies v. Stone, 40 Okla. 542, 139 Pac. 951, that “a void judgment may be vacated at any time on motion of any interested party.” The fact that the term of court at which the judgment was rendered had expired does not serve to give a void judgment any standing. It may be attacked at any time upon motion or collat erally. Wheatland Grain & Lumber Co. et al. v. Dowden, 26 Okla. 441, 110 Pac. 898; Harding v. Gillett et al., 25 Okla. 199, 107 Pac. 665; Nicoll et ux. v. Midland Savings & Loan Co., 21 Okla. 591, 96 Pac. 744; Anglea v. McMaster et al., 17 Okla. 501, 87 Pac. 660; In the Matter of the Application of Frank McMasters for a Writ of Habeas Corpus, 9 Okla. 432, 60 Pac. 280.
Counsel for defendant,' who did not represent it at the time the default occurred, has filed an able and exhaustive brief, and therein raises many legal points against the validity of .the judgment, and we are Quite sure that several of the grounds urged here would have been amply sufficient to have defeated the judgment if the same had been timely interposed before the default, but we are convinced that none of the same can rescue the defendant from the judgment, unless it be the one advanced that the judgment is void for want of jurisdiction. It can serve nó good purpose to discuss the other points urged in the brief, and we will confine the discussion to whether or not the court had jurisdiction to render the judgment .
The defendant was a foreign corporation, with its principal offices at Dallas, Tex., and had designated no agent in the state uPu on whom service could be had, so the same was attempted ,to be made by publication.
Plaintiff’s petition contained two counts: In the first count it was alleged that plaintiff and wife had executed to defendant a mortgage upon a certain tract of land in Carter county to secure a • note in the sum of $2,485; that the mortgage was filed of record in the office of the register of deeds of that county; that .the notes had been fully paid and satisfied; and that the defendant had failed to release the same, and prayed for judgment canceling ,the mortgage and removing the same as a cloud upon his title.
in count No. 2, the plaintiff repeated the allegations in count 1, and pleaded, further, that defendant had been served with notice to release said mortgage, and that it had failed to do so for 331 days, and prayed for a judgment in the sum of $24.85 for, each day and a total of $8,224.35. In the case of Ballew v. Young, 24 Okla. 182, 103 Pac. 623, 23 L. R. A. (N. S.) 1084, it is held:
“Where it is stated, in an affidavit to obtain service by publication, that a defendant is a nonresident of tne state, and service cannot be had upon him within the state, and such affidavit is otherwise sufficient, it is not void or voidable because facts are not stated therein showing that plaintiff, by the use of due diligence was unable to make service of summons upon the defendant.” Fenton v. Burleson, 33 Okla. 230, 124 Pac. 1087; Richardson et al. v. Howard, 51 Okla. 240, 151 Pac. 887.
Measured by the foregoing authorities, we are of the opinion .that the affidavit for publication sufficiently complies with the statute as to every requirement, unless the nature of the action was one which does not permit service upon the defendant by publication. Section 4722, Rev. Laws 1910, as far as applicable here, reads as follows:
“Service may be made by publication in either of the following cases: In actions brought under section 4671 * * * where any or all of the defendants reside out of the state, or where it is stated in the affidavit for service by publication that the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the state; *
* *
in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or ,the relief demanded consists wholly or partly in excluding him from any interest therein, and súch defendant is a nonresident of the state or a foreign corporation. * * *”
Section 4671, as far ás applicable, reads as follows:
“Actions for the following causes must ■be brought in the county in which the subject of the action is situated, except as provided in the next section. * * *”
“Fourth. To quiet title, ,to establish a trust in, remove a cloud on, set aside a conveyance of, or to enforce or set aside an agreement to convey real property.”
Was the action instituted by plaintiff one wherein the statutes authorize a summons by publication? If the decree sought to remove a cloud' from the title to real
property or , to exclude the defendant from some interest therein, then, the defendant being a nonresident, the statute authorized the action and summons by publication was proper, but if the plaintiff is seeking relief against the defendant personally, then summons by publication cannot be upheld. . In Robinson v. Kind, 23 Nev. 330, 47 Pac. 1, 977, it is said:
“An action to cancel a deed of real and personal property located in part in the county in which the action is brought, is an action, in part, ‘for the recovery of real property, or an estate or interest therein,’ under Gen. Sta.ts. § 3040, and, being substantially a proceeding in rem, may be prosecuted against a nonresident by publication.’’
From Morris v. Graham et al. (C. C.) 51 Fed. 53, we take this excerpt:
“A bill to remove cloud from title to real estate lying in a state is not an action in personam, to which personal service is necessary, and the state has authority to provide for service upon nonresidents by publication.”
In Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it is said:
“It is true that in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but in a larger and more general sense the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. * * * 'So far as they affect property in the state, they are substantially proceedings in rem in the broader sense which we have mentioned.” Tennant’s Heirs v. Fretts, 29 L. N. S. 625; 32 Cyc. 471.
It is apparent from the above citations that an action ,to cancel a mortgage of record upon real estate is one in rem. The statute on that subject is so clear that it is susceptible of no other construction. In fact, section 4671 specifically states that an action to quiet title to real estate and to remove clouds from such titles are local actions.
And it is equally apparent that an action for the recovery of a penalty for failure to release a recorded mortgage after the same has been satisfied is a personal action. In no sense can such an action be said to relate to an interest in real property.
Not every action growing out of transactions concerning real property is local. Where the decree sought is to operate on ,the person, and not upon the real property, the location of the property indirectly affected is no.t material.
In the case of Chicago, R. I. & P. Ry. Co. v. Wynkoop, 73 Kan. 590, 85 Pac. 595, the facts showed that a party had entered into a contract with, a railroad company wherein the company had agreed, when procuring the right of way over his land, to permanently maintain an open passageway at a certain point under the railroad track, so that the party would have an open way connecting ,the two parts of his farm. After-wards the railroad company closed up this passageway, and the party 'instituted an action in another county for an injunction. The company urged tha,t it was an action in rem, and could be maintained only in the county where the subject of the action was situated, but it was held such an action, which had for its object the preventing of the closing of said undergrade crossing, was an action in personam.
It is fundamental that no valid personal judgment can be obtained against a party unless he is personally served with process within the state or voluntarily enters his appearance. As neither of these conditions appear in the case at bar, it follows that the personal judgment against- .the defendant in the sum of $8,224.35 was absolutely void.
Here it recurs, What is the status of the entire judgment, it appearing that the -action for the cancellation of the mortgage of record can be maintained and that the action for the penalty for failure to rélease cannot be maintained under our procedure? We have been able to find but few cases where this .exact situation has been passed upon by any court. The case of Zimmerman v. Barnes, 56 Kan. 419, 43 Pac. 764, is in point and it was there held:
“It is irregular and erroneous to join claims only personal in their nature with others wherein constructive service is -allowable, and then* proceed to obtain such service as to the several incongruous claims; and, where a motion to set aside such service is seasonably made, it should be sustained.”
The contrary view was held in Porter Land & Water Co. v. Baskin (C. C.) 43 Fed. 323, as follows:
“In a. suit to establish a trust in real estate, service may be had on a nonresident, though the bill also prays for an accounting and for other relief.”
To the same effect is Chesley v. Morton, 9 App. Div. 461, 41 N. Y. Supp. 463:
“The complaint, when scrutinized, will be seen to have two aspects. It seeks to obtain a judgment against the defendant for the amount claimed to be due by him to the firm of Morton & Ohesley. In this aspect it is purely personal in its nature. But the demand for a receiver of the partnership effects, with power to sell, shows that more is sought than a merely personal judgment. There can be no doubt that a member of a dissolved partnership has a lien upon its assets. He is not compelled to rely upon the solvency of his copartner, but is entitled to the specific application of the joint assets to the payment of the sum due him upon the dissolution. Lindley on Partnership (6th Eng. Ed.) 358, 542; Story on Partnership, §§ 97, 347; Taylor v. Neate, 39 Ch. Div. 538. The demand of the receivership and injunction is here made in order to effectuate this lien, and the relief prayed for is justified by the allegations of the complaint. Regarding ,the plaintiff’s suit in this aspect, that is, as one brought to enforce a lien upon the partnership assets in this state, it comes precisely within the provisions - of subdivision 5 of section 438 of the Code, and there can he no doubt that it is an action of the class which may he begun through service by publication. Specific property within the limits and jurisdiction of this state is sought to be subjected to a lien in favor of ,the plaintiff, one of the actions particularly mentioned in Pennoyer v. Neff, supra.
“But one further question remains to be considered. The plaintiff demands a greater measure of relief than could be given him in an action begun without personal service of summons. Is it essential to the granting of the order that the action, in all its aspects, be maintained here? We think not. Section 439 of the Code requires the con-plaint to show ‘a sufficient cause of action against the defendant to be served.’ This the present complaint does. It demands a measure of relief which the court is competent to grant, together with more which it is not. It frequently happens, however, especially in equity suits, that more is asked than ,the facts proven permit the court to grant. This, however, is no. obstacle to the rendering of the decree to which the plaintiff is entitled. The plaintiff if he proves his case, is entitled, secundum allegata et probata, to the application of the New York assets to the payment of his claim, and this right is ‘a sufficient cause of action against ,the defendant’ within the meaning of section 439. Porter Land & Water Co. v. Baskin (C. C.) 43 Fed. 323, decided under the California Civil Code, is an authority on this point.” Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785.
In view of the fact that the two counts state separate and distinct causes of action, in no way relating to or depending upon each other, and, further, as there has been no commingling of the relief granted in the judgment, we are inclined not to follow the rule laid down in the case of Zimmerman v. Barnes, supra, but it appears to us that ,tke facts in the ease at bar warrant us in holding with the last two above-quoted cases that the joining of the two causes of action, ,the one being maintainable, and the other not, in the same petition will not operate to vitiate the entire procedure, but that the cause of action set forth in the first count in .the petition was properly maintained and the judgment rendered therein, canceling the mortgage of record as prayed for, valid and regular, but that the cause of action set forth in the second count of the petition could not be maintained against a nonresident defendant, and the judgment rendered thereon was void for lack of jurisdiction.
After the court had overruled defendant’s motion to set aside the judgment, the defendant filed a motion for a new trial, which was also overruled. Both of said motions were overruled on the same day, and defendant was .then given time to make and serve case-made for an appeal. It was not made known whether the appeal was taken from the action of the court in overruling the motion to set aside the judgment or the motion ' for a new trial. As a motion for a new trial to review ,the order of the court denying a motion to set aside a judgment is unauthorized by statute (Owen v. District Court of Oklahoma et al., 43 Okla. 442, 143 Pac. 17); in fact, a vain and useless motion, an appeal from an order denying such a motion would also be a nullity. But as an appeal does lie from an order of the court denying a motion to set aside and vacate a judgment, we are inclined to hold that the appeal taken by the defendant was from such order.
Plaintiff suggests that no summons was issued by defendant upon the filing of its motion ,to set aside the judgment. The record shows that plaintiff appeared at the hearing upon the motion and participated therein, which, of course, operated as a waiver of the issuance and service of summons.
We recommend .that the judgment based upon the cause of action set up in the first count of the petition, cancelling and holding for naught the mortgage of record, be affirmed, and that the judgment based upon the second count, being a judgment against defendant for $8.224.35, be reversed, and said second count in said petition be dismissed.
By the Court: It is so ordered.