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45 Minn. 408, 48 N. W. 12; Halvorsen v. Moon, 87 Minn. 18, 94 Am. St. Rep. 669, 91 N. W. 28; Dixon v. Union Iron Works, 90 Minn. 492, 97 N. W. 375; Georgia R. & B. Co. v. Fitzgerald, 108 Ga. 507, 34 S. E. 316, 49 L. R. A. 175.

The application of the insured in the case at bar represented that he was born December 2, 1849, while the application to the Bankers' Life represented that he was born December 2, 1846. The contention of the defendant is that the latter application was properly received in evidence to prove the true date of his birth, and the rule of law referred to and the authorities cited sustain that position. It not only tended to establish the true date, but the further fact that the insured falsely and fraudulently represented the fact in his application to defendant. The application to the Bankers' was made in the course of a transaction in which the information was material, and there is no 77 suggestion in the record that the statement then made was incorrect or the result of a mistake. It was made without apparent reason for misrepresentation, which, within the rule admitting such evidence, sufficiently vouches for its truthfulness; whereas, in the case at bar, had the true date been given, the applicant could not, under defendant's by-laws, have become a member of the association, and the reason for a false date was present. Curiously enough the date given the Bankers' company corresponds exactly with the date given in plaintiff's proof of death in the case at bar.

2. It is further contended by plaintiff that the evidence is insufficient to justify the conclusion that the Taylor who made the application to the Bankers' was the same person who became a member of defendant. A careful comparison of the two applications will admit of no argument on this subject. That the same person made both applications conclusively appears. The name is the same in each, the residence the same, Araminta Taylor is named as beneficiary in each, and other items of information therein contained point to one and the same person. The claim of identity is further shown by the fact that in the application to defendant Taylor stated that he had previously taken out insurance in the Bankers' Life.

3. The further claim that the evidence does not show that deceased signed and executed the application to the Bankers' is not sound. The application appears to have been in the usual form, and the evidence shows that it was received and

acted upon by the officers of the company. It is the universal and generally known and understood custom of life insurance companies to require formal written applications for life insurance, connected with which is a medical examiner's report disclosing minute information concerning the applicant's life and physical condition, and no policies are issued without compliance therewith. Of this general custom the court will take judicial notice, and in the absence of information to the contrary will presume that it was followed in this instance: McKibbin v. Great Northern Ry. Co., 78 Minn. 232, 80 N. W. 1052; McKibbin v. Wisconsin Central Ry. Co., 100 Minn. 270, 117 Am. St. Rep. 689, 110 N. W. 964, 8 L. R. A., N. S., 489; Braun v. Northern Pacific Ry. Co., 79 Minn. 404, 79 Am. St. Rep. 497, 82 N. W. 675, 984, 49 L. R. A. 319, and cases cited; 16 Cyc. 878. It was therefore unnecessary that affirmative evidence that the insured signed the application be produced. 78 The record contains no inference or suggestion that it was not, and the facts and circumstances disclosed point to the conclusion that it was properly signed by Taylor, and that the answers to questions therein were made by him.

It follows that the learned trial judge was right in admitting the application in evidence, and wrong when he concluded, on the motion for a new trial, that he erred. We have examined the other rulings of the court on the trial, which counsel urged were such as to require a new trial, and find no error sufficient to justify vacating the verdict.

The order granting a new trial must, therefore, be reversed.

Froof of the Age of a Person is the subject of a recent note to Grand Lodge v. Bartes, 111 Am. St. Rep. 583. The age of a son may be shown by the declarations of his father since deceased: Travelers' Ins. Co. v. Henderson's Cotton Mills, 120 Ky. 218, 117 Am. St. Rep. 585.


[101 Minn. 169, 112 N. W. 386.]

JUDGMENTS in Excess of Jurisdiction-Attack upon.-If a court exceeds its jurisdiction in rendering judgment, and such want of jurisdiction appears upon the face of the record, the judgment may be attacked either directly or collaterally at any time before or after the time for appeal, even by a person not a party to the action, but who is affected thereby in his property rights. (p. 614.)

JUDGMENT Outside of Issues-Attack upon.-If it affirma tively appears from the record that the court in rendering judgment went beyond and outside of the issues, and in the absence of one of the parties determined property rights against him which he has not submitted to it, the court has exceeded its authority, even though it had jurisdiction of the general subject of the matters adjudicated. Such a departure is not a mere irregularity; it is extrajudicial, and renders the judgment absolutely void. (p. 615.)

JUDGMENT-Extent of Relief.-In an Action to Determine Adverse Claims to real property, plaintiff is entitled, on the default of the defendant, to such relief only as he demands in his complaint, or such as comes within the scope of its allegations, and a judgment beyond that is void. (p. 616.)

JUDGMENTS-Validity-Jurisdiction.-In addition to jurisdiction of the parties and of the subject matter of the action, it is necessary to the validity of a judgment that the court should have had jurisdiction of the question which the judgment assumes to decide, or the particular remedy or relief which it assumes to grant. (p. 617.)

JUDGMENT for Relief Beyond Issues submitted is unauthorized and beyond the power of the court, and may be collaterally attacked at any time by a party in interest, whether a party to the suit or not. (p. 617.)

JUDGMENT-Extent of Relief.-A statute providing for a form of action to determine adverse rights in real property is not designed as a means of acquiring title, but as an expeditious mode of extinguishing claims of title held adversely to plaintiff, and a judgment in favor of plaintiff in such an action, based upon the usual form of complaint, does not of itself operate to transfer title from defendant. (p. 621.)

W. G. White, for the appellant.

J. Schoonmaker, for the respondent.

170 BROWN, J. This action was brought under Revised Laws of 1905, section 4424, to determine adverse claims to certain real property. The complaint, so far as here material, alleges that the plaintiff is the owner in fee simple of the land, which is described therein; that it is vacant and unoccupied; and that defendant claims some title or interest therein adverse to plaintiff. "Wherefore the plaintiff prays that he may be adjudged to be the owner in fee simple of

the above-described real estate, . . . . and that the defendant may be adjudged to have no right, title, interest or estate in said real estate, . . . . and that he may have such other and further relief," etc. The summons was duly served, but defendant made no appearance in the action. Thereafter, on application of plaintiff, the court below made an order reciting the service of the summons and default of defendant and directing the entry of judgment "in all things in accordance with the prayer of the complaint." There were no findings of fact disclosing the source of plaintiff's title to the property, or the title or right of defendant, nor any finding upon which to predicate a judgment transferring to plaintiff defendant's title, if any she had. The order for judgment was in the form often used in default cases, and does not disclose that any evidence was offered for the consideration of the court. On June 27, 1905, judgment was. duly entered by the clerk, substantially as prayed for in the complaint, to the effect that plaintiff was the owner of the property and that defendant had no title or right therein, and for the following further relief not prayed for in the complaint, nor embraced within the scope of the order for judgment, namely: "It is further adjudged and decreed that all the right, title, interest, estate or lien in, to, upon, or against said premises, held, owned, or possessed by said Ellen. M. Gillette [defendant], be and it is hereby transferred to and vested in William R. Sache, the plaintiff in this action."

Defendant was in fact neither owner of the property at the time of the commencement of the action nor had she any interest therein when judgment was entered, having prior thereto conveyed the same to Emma L. Wallace; but the deed had not then been recorded. On October 31, 1906, more than a year after the entry of the judgment, 171 Mrs. Wallace, upon affidavits setting forth her ownership of the property and her ignorance of the action or judgment, moved the court to strike from the judgment the provision quoted above in full, by which the title of defendant was transferred to and vested in plaintiff, on the ground, among others, that the court had no authority to incorporate the same in the judgment, in that the relief thereby granted was not prayed for in the complaint. The court granted the motion, and plaintiff appealed.

It is contended by appellant that, conceding for the purposes of the point that the relief granted exceeded that to

which plaintiff was entitled under the complaint, the inclusion thereof in the judgment was an error or irregularity not going to the jurisdiction of the court, to be corrected by motion or appeal within the time prescribed by statute for the correction of such errors; that the judgment, not having been so proceeded against, became, after the time for appeal had expired, final and conclusive as to all the world. The merits of this contention depend wholly upon the question whether the embodiment of the excessive relief in the judgment was a mere irregularity, or whether it exceeded the jurisdiction and power of the court. If a mere irregularity, counsel's contention is sound. It is elementary that a judgment of a court of competent jurisdiction, after the expiration of the time of appeal, cannot be impeached, either directly or indirectly, for mere errors or irregularities not going to the jurisdiction of the court; but in all cases where the court exceeds its jurisdiction, and want of jurisdiction appears upon the face of the record, the judgment may be attacked at any time, before or after the time for appeal, even by a person not a party to the action, but who is affected thereby in his property rights: Mueller v. Reimer, 46 Minn. 314, 48 N. W. 1120; 12 Ency. of Pl. & Pr. 188; Phelps v. Heaton, 79 Minn. 476, 82 N. W. 990.

1. The courts are not in full harmony as to what constitutes an irregularity within the meaning of the rule referred to. Generally speaking, however, an irregularity may be defined as a failure to follow appropriate and necessary rules of practice or procedure, omitting some act essential to the due and orderly conduct of the action or proceeding, or doing it in an improper manner: 17 Am. & Eng. Ency. of Law, 2d ed., 481; Jenness v. Circuit Judge, 42 Mich. 469, 4 N. W. 220; Holmes v. Russel, 9 Dowl. 487. Errors or defects of this character, 172 that may be amended without prejudice to the absolute rights of the parties, do not affect the jurisdiction of the court to the extent that its final action is a nullity. But proceedings outside the authority of the court, or in violation or contravention of statutory prohibitions, are, whether the court have jurisdiction of the parties and subject matter of the action or proceedings, or not, utterly void: Ex parte Simmons, 62 Ala. 416; Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; Barton v. Saunders, 16 Or. 51, 8 Am. St. Rep. 261, 16 Pac. 921.

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