On Application for Rehearing. Appellant applies for a rehearing and assails the opinion on several grounds.
It is contended that the judgment obtained by the bank against appellant and which appellant on this appeal seeks to have vacated and set aside was void because it did not direct a sale of the stock and application of the proceeds before entering a personal judgment.
Appellant appears to ignore the fact that this is a proceeding *Page 474 in equity to vacate a judgment, and that it is incumbent upon him to bring his case within the rules required in such proceedings (Anderson v. State of Utah, 238 P. 557, and cases cited), and must also show that he was prejudiced by the proceeding complained of. On this particular point the burden was upon the appellant to both plead and prove that the stock held as collateral for the payment of the notes had some value and that the proceeds of a sale thereof would have at least partially satisfied the judgment. If the stock was valueless, why incur the expense of attempting to sell it? Of course, it would have been a more orderly proceeding on the part of the trial court if it had made a finding that the stock was valueless before entering a personal judgment. It cannot be successfully contended that the irregularity referred to renders the judgment void.
It is also contended that the opinion is erroneous in holding that there is no law requiring notice of the overruling of the demurrer, entry of default, or the findings and judgment in a case.
Appellant calls our attention to statutes which justify his contention in that regard and the opinion will be modified in that particular. However, the law requiring notice to be given in such cases is clearly not jurisdictional. Such errors, if prejudicial, may be corrected on appeal, but do not render a judgment void and subject to collateral attack.
Appellant cites for the first time certain decisions of this court which he says we ignored in the opinion, to wit:Stockyards National Bank of South Omaha v. Bragg et al. (Utah), 245 P. 966; Thero v. Franklin, 160 P. 1188,48 Utah, 587; Franklin v. Thatcher, 178 P. 922, 53 Utah, 397. The first case cited is pending in this court on application for rehearing. None of the cases cited, as will appear upon an examination, is applicable to the question under review. See, also, the following cases cited by appellant: 15 R.C.L. 605;Russell v. Shurtleff, 65 P. 27, 28 Colo. 414, 89 Am.St. Rep. 216; Larson v. Williams, 63 N.W. 464, 69 N.W. 441,100 Iowa 110, 62 Am.St.Rep. 544. The same may be said *Page 475 of these cases as was said of the Utah cases referred to, they are not applicable to the point in question.
As before stated, it was incumbent upon appellant in a proceeding of this nature to show prejudice as well as error, which he could easily have done, if the stock referred to had any value. Had he alleged such fact in his complaint in this case, if it were a fact, under his prayer for general relief, this court might have been warranted in directing the trial court to modify the judgment by ordering the stock to be first sold and the proceeds applied to a payment of the judgment.
The application for a rehearing is denied.