Page:North Dakota Reports (vol. 48).pdf/40

 by some proper proceeding instituted directly for the purpose or avoiding or correcting it. 15 R. C. L. pp. 875. 876; 23 Cyc. 1215 et seq.

Appellant contends that under the recent decision of this court in Shary v. Eszlinger, 45 N. D. 133, 176 N. W. 940, a judgment may be impeached, on the ground of fraud, in any proceeding. The portion of the opinion upon which this contention is predicated is the following quotation from Hutchins v. Lockett, 39 Tex. 165: "That a judgment rendered by a court of competent jurisdiction cannot be attacked in a collateral proceeding is a rule of almost universal application. Nevertheless a judgment may be impeached in any proceeding upon the ground of fraud or satisfaction. It is said ‘that the maxim that fraud vitiates everything applies to judgments' (Freeman, Judgm. p. 90); and this rule may be applied to judgments affected by fraud, whether the fraud arises at the time of or after the rendition of the judgment. The court has only to determine that a judgment is founded in fraud, in order to authorize its impeachment as a nullity." 39 Tex. 159.

The question presented in Shary v. Eszlinger was, What faith and credit must be accorded in this state to a judgment rendered by a district court in Texas? In order to determine that question, it became necessary to ascertain what effect was given to such judgment in the state of Texas. Or, as stated in the decision in Shary v. Eszlinger, the question presented in that case "resolved to this——Would the facts set forth in the answer, and covered by the proof, be sufficient to authorize the courts of Texas to set aside the judgment or enjoin the enforcement thereof ?” The quotations from Hutchins v. Lockett, and from other Texas decisions, were set forth for the purpose of showing what force and effect was given in Texas to judgments rendered in that state. By so quoting, we did not necessarily approve of what was said in the Texas decisions. It was not for us either to approve or disapprove thereof. We were concerned only with ascertaining what the law of Texas was as regards the force and effect of judgments rendered by the courts of that state. The quotation, from Freeman on Judgments, contained in Hutchins v. Lockett, was taken from that portion of Freeman’s work which deals with the vacating judgments by motion, and hence does not support the contention that a judgment procured by fraud is subject to collateral attack by the parties thereto or those in privity with them. On the contrary, that noted author, elsewhere in his work, lays down the rule: “The parties to an action, and the persons in privity with them, cannot collaterally attack or impeach a judgment for fraud; and any attack must be regarded as col-