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to act, by any material allegation, nor was there any such allegation to amend by. Hence I conclude that allegations immaterial and wholly insufficient in law may be sufficient to set the judicial mind in motion,' and to give a wrongful but actual jurisdiction, which will shield the proceedings from collateral attack. It seems to me that the Indiana case above cited, which was a special statutory proceeding before a board of inferior and very limited judicial power, announces the true and only logical rule, namely, that if there is any petition at all, invoking the action of the court, its judgment is not void.

"The courts of New York are not able to stand by their early rule that, where a single material allegation is omitted from a petition in a special proceeding, it is void. Thus, a fine for the violation of an ordinance was collaterally attacked because the board had no power to pass it. The court, assuming that to be true, said: "The justice of the peace had jurisdiction of the subject-matter of the action, being for the recovery of a penalty less than two hundred dollars. * * * The jurisdiction of the magistrate was not derived from, and did not depend upon, the act which is challenged, but upon the general statutes of the State.' Hallock v. Dominy, 69 N. Y. 238, 240. In other words, having the defendant before him, and having jurisdiction to grant the relief demanded in a proper case, his judgment was not void, even though the allegations showed affirmatively that no cause of action existed in that case. This being a special statutory proceeding in restraint of personal liberty, how the logic on which this case rests can be reconciled with the earlier decisions it is difficult to understand. If a special proceeding is not void where the petition shows affirmatively that no cause of action exists, it would seem to follow, as a necessary sequence, that the failure of the petition to show a cause of action on account of the absence of one or more material allegations would not make it void. *

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"The supreme court of California said: "The first point decided by any court, although it may not be in terms, is that the court has jurisdiction; otherwise, it would not proceed to determine the rights of the parties.' Clary v. Hoagland, 6 Cal. 685, 688. The supreme court of Wisconsin having erroneously determined that it had jurisdiction (the case not showing the point), and rendered judgment, it was held not void, because the court had power to decide on its own jurisdiction. State v. Waupaca

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'Where jurisdic

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County Bank, 20 Wis. 640. tion depends on the finding of a particular alleged fact, the exercise of jurisdiction implies the finding of that fact.' Thornton v. Baker, 15 R. I. 553 (2 Am. St. Rep. 925). * * * 'The assumption of authority is an assertion of jurisdiction, without any formal statement of the facts essential to give jurisdiction.' Osborn v. Sutton, 108 Ind. 443, 445. Where a court of general jurisdiction assumes jurisdiction, the existence of all facts necessary to confer jurisdiction are presumed to exist.' Jackson v. State, 104 Ind. 516; Sims v. Gay, 109 Ind. 501, 503. So, in Alabama, it is said that action of the court implies the previous ascertainment of the preliminary jurisdictional facts, and that its decision on those facts cannot be called in question collaterally. Wyatt's Adm'r v. Steele, 26 Ala. 639, 650; accord, Vosler v. Brock, 84 Mo. 574, 578. Judicial action is an adjudication not only of the facts actually determined, but equally so of all precedent matters which should have been determined. Ney v. Swinney, 36 Ind. 454. The Supreme Court of the United States, speaking of a collateral attack on an administrator's sale of land made in obedience to a private statute, said: 'In making the order of sale, the court is presumed to have adjudged every question necessary to justify such order or decree, viz., the death of the owner; that the petitioner was his administrator; that the personal estate was insufficient to pay the debts of the deceased; that the private act of assembly, as to the manner of sale, was within the constitutional power of the legislature; and that all the provisions of the law as to notices which are directory to the administrator have been complied with.' Florentine v. Barton, 2 Wall. 210, 216. A judgment by default bars the parties as conclusively, collaterally, as though they had framed issues, and had a trial, and been defeated. Goebel v. Iffla, 48 Hun, 21. The assumption of jurisdiction and the exercise of authority is a decision. upon the question of notice, without any formal entry declaring the notice sufficient. Updegraff v. Palmer, 107 Ind. 181, 182; Jackson v. State, 104 Ind. 516, 520.

* * Collaterally, an administrator's order to sell land is an implied and conclusive adjudication that the sale was necessary, and that notice was duly given (McDade v. Burch, 7 Ga. 559, 50 Am. Dec. 407); and an order granting relief is an adjudication of every fact essential to the validity of the order. Reynolds v. Faris, 80 Ind. 14, 19; Pendleton & Eden Turnpike Co. v. Barnard,

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40 Ind. 146; English v. Woodman, 40 Kan. 752; McGregor v. Morrow, 40 Kan. 730. * A final judgment in favor of the plaintiff is always an implied adjudication that all his allegations, both express and implied, are true. Plummer v. Inhabitants of Waterville, 32 Me. 566, 568."

In Landon v. Comet, 62 Mich. 80, it was held that, "where an objection was made to the right of the circuit judge to sit in the probate court, his assuming to act, ignoring the objection, was an adjudication of his right to do so." See, also, Miller v. Smith, 115 Mich. 427; Allured v. Voller, 112 Mich. 357; Scotten v. City of Detroit, 106 Mich. 564.

In the case before us, the jurisdiction rests upon a statute which confers upon the court the power of determining whether the State has a lien for taxes upon land, and enforcing payment by a decree of sale. It has undoubted jurisdiction in every case where there is an enforceable lien. In a sense, it has no jurisdiction in a case where there is no existing lien which the State has a right to enforce. But, manifestly, the only way of finding out whether the State has such a lien is to try the question, and if, as is contended here, the question may be raised collaterally in any court or proceeding, it follows that these proceedings (in pro confesso cases, at least) are decisive of nothing, for the same claim can be made as to any or all parcels of land covered by the decree. The statute prescribes what the petition shall contain. It does not require an allegation that none of the lands are held by the State upon tax bids. It alleges a lien, and prays enforcement, thus impliedly informing defendants that it is claimed that they are subject to such proceedings. The judge decides that they are so, when he includes them in the decree. We must presume that he has found the necessary facts. But there is a mistake of fact. The defendant has not chosen to bring the truth to his attention, or has inadvertently omitted it. But we must presume from the record that the necessary facts

have been found, and the record cannot be contradicted; otherwise, there would be a premium on not making a defense, for it would be safer. The supreme court of Louisiana said: "Absolute nullities in judicial proceedings are such as result from radical defects, omissions, and irregularities appearing on the face of the record, and are not dependent on matters in pais, to be established by evidence aliunde." Stackhouse v. Zuntz, 36 La. Ann. 529, 533. The same point has been decided in many other States. Hughes v. Cummings, 7 Colo. 203 (a county court judgment); Earle v. Earle, 91 Ind. 27, 42; Phillips v. Lewis, 109 Ind. 62, 68; Kingman v. Paulson, 126 Ind. 507 (22 Am. St. Rep. 611); Scott v. Crews, 72 Mo. 261, 263; Byram v. McDowell, 15 Lea, 581, 585; Stanley v. Sharp, 1 Heisk. 417 (a county court judgment); Beech v. Rich, 13 Vt. 595; Ex Parte Bergman, 3 Wyo. 396; Welborn v. People, 76 Ill. 516; Wright v. Wright, 74 Wis. 439.

We think the judgment should stand affirmed.

MONTGOMERY, MOORE, and LONG, JJ., concurred. GRANT, C. J., did not sit.

WILHELM v. VOSS.

1. STATUTE OF FRAUDS-ORIGINAL AND COLLATERAL PROMISES. An oral agreement by the owner of a building to pay a subcontractor for his work is binding upon him if such subcontractor abandons his contract with the principal contractor, so as to retain no claim against him, but not otherwise.

2. PRINCIPAL AND AGENT-EVIDENCE.

Evidence that defendant in an action to recover for plastering a house told plaintiff that he would leave it all to a third person to look after the business for him is sufficient for the submission to the jury of the question of the agency of such third person.

Error to Wayne; McMahon, J., presiding. Submitted April 8, 1898. Decided September 20, 1898.

Assumpsit by Peter Wilhelm against Albert J. Voss for work and labor. From a judgment for plaintiff, defendant brings error. Affirmed.

A. G. Pitts, for appellant.

James H. Pound, for appellee.

HOOKER, J. Van Bogaert & Co. erected a building for Voss, under a contract. When it was ready for plastering, Van Bogaert, accompanied by Domke, who worked upon the house as a carpenter in Van Bogaert & Co.'s employ, went to the house of the plaintiff, when the plaintiff and Van Bogaert, acting for his firm, made a contract whereby the plaintiff agreed to do the lathing and the plastering upon the house for Van Bogaert & Co. The plaintiff hired Bolster to do the lathing, and he suggested to the plaintiff that Van Bogaert & Co. were irresponsible; and thereupon the plaintiff saw Domke, who lived in the family of Voss, and who said that he expected to marry

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