delivered the opinion of the court.
Upon this review we are limited to the inquiry whether the district court exceeded its jurisdiction or greatly abused its discretion in the matter of the discharge of petitioner Kaufman, or whether it regularly pursued the authority conferred by the habeas corpus act. Secs. 297 and 308, Code of Civil Procedure, 1887. And these questions are to be determined from an inspection of the record as certified, containing the petition’for the writ, the return of the sheriff and the answer of petitioner thereto. In conformity with the requirements of the act, the application presented to the court below sets forth the facts concerning the imprisonment of petitioner, and wherein the supposed illegality of such imprisonment consists; and it therefrom appears that the restraint complained of was by virtue of a judicial writ issued bythe county court of Arapahoe county upon a judgment rendered in an action whereof that court had jurisdiction, both as to the subject-matter and the person of the defendant, and one that that court was authorized to render by virtue of the provisions of sections 2164 and 2165, Mills’ An. Stats.
It thus appearing that the petitioner was in custody by virtue of process issued from a court legally constituted, the court below, by the express provisions of the habeas corpus act, was precluded from inquiring into the justice or legality of the judgment upon which such process was issued, except to ascertain if the court had exceeded its jurisdiction as to matter, place, sum or person, and whether the process, though in proper form, had been issued in a case or under circumstances where the law does not allow process for imprisonment to issue. We are unable to perceive how the court below could ascertain either of the above conditions in the absence of the record of the proceedings of the county court. From aught that appears from the petition, return *426and answer, the county court had in no manner exceeded its jurisdiction in rendering the judgment complained of, either as to place, sum or person. The subject-matter of the suit, the amount involved, and the nature of the judgment rendered were clearly within its jurisdiction, and it was authorized by law to issue process of imprisonment in a case of the character of the one in which the judgment was rendered. But it is insisted that although the county court had jurisdiction of the subject-matter and the person of petitioner and the authority to render a judgment of such a character in a proper case, that it had no authority to render the particular judgment in question, because of the alleged fact that the cause of action upon which it was rendered had been merged in a prior judgment; and, furthermore, that the allegations of the complaint and the findings of the court were insufficient to sustain the judgment and authorize an execution against the body; the argument being that a former recovery upon the same cause of action, ipso facto, deprived the court of jurisdiction to render a second judgment, and that the court below had authority, on the habeas corpus proceeding, to ascertain, aliunde the record in the case, whether or not the judgment complained of was rendered upon the same cause of action adjudicated in a former action, and, if so found, to adjudge the action of the county court in the latter suit to be coram non judice, and the second judgment absolutely void.
We think there are several reasons why such a procedure in habeas corpus cannot be tolerated, or such a practice permitted. The mere fact that a former recovery has been had upon the same cause of action sued on does not, ipso facto, deprive the court of power to render a judgment thereon in a second action. But, in order to defeat a second recovery thereon, the former judgment must be properly pleaded as a defense, or under some appropriate pleading be brought to the attention of the court upon the trial, and unless so availed of the party is presumed to have waived the benefit *427of it. Black on Judgments, sec. 783; In re Allison, 13 Colo. 525; Ex parte Kellogg, 6 Vt. 509.
Therefore, since it appears that the petitioner made default in the second action, and the former recovery was in no way brought to the attention of the trial court, the judgment complained of is not now open to collateral attack upon the ground that the cause of action upon which it was rendered had theretofore been merged in a former judgment. In other words, its validity cannot be assailed on habeas corpus by evidence showing that a certain defense existed which, if pleaded, would have defeated the recovery. Ex parte Grill, 7 East, 376.
A further answer to the contention of counsel is found in the fact that the writ of habeas corpus cannot be used as a writ of error, nor will one court review the proceedings of another court of concurrent jurisdiction in that manner. And, certainly, if errors apparent upon the record cannot be thus reviewed, it would clearly be an unwarranted assumption of power for a court in habeas corpus proceedings to determine that by reason of some fact de hors the record, the judgment complained of was improperly rendered. As a rule, the judgment of a court of general jurisdiction is not void unless it appears from the record itself that the court in pronouncing that particular judgment acted without, or in excess of, its jurisdiction. G. W. M. Co. v. W. of A. M. Co., 14 Colo. 103.
It is further contended in behalf of respondent that the allegations of the complaint were insufficient to sustain the judgment rendered against the petitioner in the second action. How that was made to appear is not evident from this record, but conceding that the complaint was defective, that question was not for the consideration of the court below. It being unquestioned that the county court had jurisdiction of the class of cases in which, upon proper averment and proof, a judgment of the character of the one complained of might be rendered, and it having decided that the complaint was sufficient to sustain the judgment, its ruling, however erro*428neous, was not reviewable on habeas corpus. In re Coy, 127 U. S. 731; Ex parte Tobias Watkins, 3 Peters, 193; Ex parte Yarbrough, 110 U. S. 651.
In the latter case the court, in emphasizing the doctrine that the writ of habeas corpus could not be converted into a writ of error, used the following language:
“ It is, however, to be carefully observed that this latter principle does not authorize the court to convert the writ of habeas corpus into a writ of error, by which the errors of law committed by the court that passed the sentence can be reviewed here; for if that court had jurisdiction of the painty and of the offense for which he was tried, and has not exceeded its powers in the sentence which it pronounced, this court can inquire no further. * * *
“ Whether the indictment sets forth in comprehensive terms the offense which the statute describes and forbids, and for which it prescribes a punishment, is in every ease a question of law, which must necessarily be decided by the court in which the case originates, and is therefore clearly within its jurisdiction. Its decision on the conformity of the indictment to the provisions of the statute may be erroneous, but if so it is an error of law made by a court acting within its jurisdiction, which could be corrected on a writ of error, * * * but which cannot be looked into on a writ of habeas corpus limited to an inquiry into the existence of jurisdiction on the part of that court.”
From the application for the writ of habeas corpus and the return thereto, it appeared that petitioner was restrained of his liberty under a process in proper form, issued in a case where the law allows process for imprisonment to issue, by a court legally constituted and upon a judgment valid upon its face, and attempted to be impeached only by the averment of facts de hors the record, and not cognizable by the court on habeas corpus. Upon this showing the court below was not authorized to interfere with the custody of petitioner, and in* discharging him it exceeded it jurisdiction.
For this reason its judgment will be annulled, and it is so ordered.