On Petition for Rehearing.
Felt, C. J.Appellants in their petition for a rehearing earnestly contend that the judgment should be reversed and base their contention on two propositions. (1) That the suit is a direct and not a collateral attack on the judgment of the board of commissioners. (2) That the allegations of the complaint that no notice was given or served on appellants make the complaint good and authorized parol proof to dispute the recitals of the record which show that due notice had been served on all landowners affected who had not joined as petitioners.
1. There is no basis in our decisions for the first contention. The cases cited do not support the proposition and are mostly eases which show a direct, and not a collateral attack upon the judgment. The case of Frankel v. Garrard (1903), 160 Ind. 209, 66 N. E. 687, mainly relied on was a suit to set aside a judgment on the ground of fraud in its procurement, and incidentally to enjoin the sheriff from enforcing an execution for its collection. The court held that the procurement of a false return by one *42of the parties to the suit was a fraud upon the other party “and the court in which the suit was pending”. The court also on page 214 held that “The impeachment of the judgment by an action to set it aside and enjoin its collection for fraud in its procurement was direct, and not collateral, attack.”
The original opinion mentions the fact that our decisions show considerable discrepancy of expression and some difference of opinion as to the conditions under which the want of jurisdiction of an inferior court may be shown by proof de hors the record.
8. In numerous decisions it has been declared in general terms that a void judgment is subject to collateral attack and that one that is only voidable because of errors and irregularities is invulnerable to such attack. The record of a court of general jurisdiction need not affirmatively show the jurisdictional facts, as it will be presumed that such court had jurisdiction of the persons and of the subject-matter of the suit, unless it affirmatively appears from the record itself that it did not have such jurisdiction. The rule as to inferior courts, boards of commissioners and like tribunals, is that the record must show affirmatively that such court had jurisdiction of the subject-matter and of the persons of the parties to the suit or proceeding, before any presumptions are indulged in favor of the judgments of such courts. There is no doubt or uncertainty as to the position of our courts of last resort on the foregoing general propositions, but the decisions are not all clear and definite with reference to the right to dispute by parol testimony the recitals of the record of such inferior courts which show jurisdiction, or that the court had passed on the jurisdictional facts and proceeded to exercise its jurisdiction in the suit, or proceeding before it.
*439. *42The judgment of a court of record is not void unless the thing lacking or making it so is apparent on the face of the record. Brooks v. Morgan (1905), 36 Ind. App. 672, 677, *4376 N. E. 331; Smith v. Hess (1884), 91 Ind. 424, 425; Earle v. Earle (1883), 91 Ind. 27, 42; Martin v. Neal (1890), 125 Ind. 547, 553, 25 N. E. 813; Kingman v. Paulson (1891), 126 Ind. 507, 510, 26 N. E. 391, 22 Am. St. 611. In Smith v. Hess, supra, the court said: ‘ ‘ Some confusion has been brought into the cases by the use of the terms void and voidable, as applied to judgments. Judgments are frequently spoken of as void, because they may be so declared in a proper proceeding. The general and correct tule, as established by the weight of authority, is, that a judgment by a court of competent jurisdiction is not void, unless the thing lacking, or making it so, is apparent on the face of the record. If the infirmity do not so appear, the judgment is not void, but voidable. One is a nullity, a mere brutum fulmen, and may be so treated by all persons, in collateral as well as direct attacks.”
10. If the records of a board of commissioners, or like tribunal, show that the court passed on the jurisdictional facts and either expressly or by necessary implication held them to be sufficient, under the foregoing rule, its judgment is not void in the sense that it is vulnerable to collateral attack, unless it may be ascertained from the whole record that the court did not have or acquire jurisdiction in the particular suit or proceeding. The pleadings, summons, notices and other files in the case or proceeding constitute a part of the record and may be resorted to, to ascertain the facts essential to the court’s jurisdiction. Mitten v. Caswell-Runyan Co. (1913), 52 Ind. App. 521, 525, 99 N. E. 47.
11. In a direct attack the judgment of an inferior court may be assailed upon the jurisdictional facts by parol, or other proof of facts de hors the record, but the decided weight of authority in this State, and the better reason, establish the rule that in a collateral attack the recitals in the record of such court which either directly or by necessary implication show jurisdiction or that the court *44passed on the jurisdictional facts, and held them to be sufficient, can not be disputed by facts de hors the record. In Gold v. Pittsburgh, etc., R. Co. (1899), 153 Ind. 232, 246, 54 N. E. 802, the court Said: “Where the want of jurisdiction of an inferior court is not apparent, on the face of its proceedings, it follows, as a general proposition, that its judgment, on the question of its jurisdiction, either expressly or impliedly given, has the same binding effect upon the parties as has its decision on any other matter within its cognizance in such proceeding, and an error in this respect must be corrected in the same manner as other errors are authorized to be corrected.” In Harmon v. Moore (1887), 112 Ind. 221, 228, 13 N. E. 718, Mitchell, J., speaking for the court said: “While a judgment void for want of jurisdiction may be attacked collaterally by a party to the judgment, its invalidity can not be shown in a collateral attack by bringing forward matter extraneous to the record itself.” In Baltimore, etc., R. Co. v. Freeze (1907), 169 Ind. 370, 375, 82 N. E. 761, the court held that the judgment of an inferior tribunal on jurisdictional facts “is conclusive against collateral attack, unless the want of jurisdiction is apparent on the face of the proceedings.” As supporting our conclusion we cite the fallowing additional authorities. Friebe v. Elder (1914), 181 Ind. 597, 105 N. E. 151; Sinclair v. Gunzenhauser (1913), 179 Ind. 78, 98 N. E. 37, 100 N. E. 376; Baker v. Osborne (1914), 55 Ind. App. 518, 104 N. E. 97; Heagy v. Black (1883), 90 Ind. 534, 543; Hord v. Elliott (1870), 33 Ind. 220, 222; State, ex rel. v. Needham (1869), 32 Ind. 325, 327; Town of Cicero v. Williamson (1883), 91 Ind. 541, 542; Board, etc. v. Hall (1880), 70 Ind. 469, 475; Marshall v. Gill (1881), 77 Ind. 402, 405; Argo v. Barthand (1881), 80 Ind. 63, 66; Johnson v. Ramsey (1883), 91 Ind. 189, 195; Pendleton, etc., Turnpike Co. v. Barnard (1872), 40 Ind. 146; Harman v. Moore (1887), 112 Ind. 221, 13 N. E. 718; Lantz v. Maffett (1885), 102 Ind. 23, 28, 26 N. E. 195; Clayborn v. Tompkins (1895), 141 Ind. *4519, 22, 40 N. E. 121; State, ex rel. v. Hudson (1871), 37 Ind. 198, 202. The eases that lend most support to appellants’ contention are Smith v. Clausmeier (1893), 136 Ind. 105, 35 N. E. 904, 43 Am. St. 311, and Forsyth v. City of Hammond (1895), 142 Ind. 505, 40 N. E. 265, 41 N. E. 950, 30 L. R. A. 576. They are not in harmony with the prevailing weight of authority or consistent with the underlying principles which control such questions.
The complaint in the case at bar pleads a part of the record which shows that the court passed on the jurisdictional facts and held them to be sufficient to give jurisdiction of the pending proceeding and of appellants. The averments which charge that the record is false and that appellants had no notice, are independent of the facts shown by the record, and are to be supported, if at all, by proof of facts de hors the record, for it can not be presumed in the absence of averments showing all, or other parts, of the record, that the parts not pleaded are contradictory of the part set out in the complaint. If instead of setting out only a portion of the record, appellants had set out the pleadings, notice, proof of service or any other part, or all, of the record or files of the ease, and from such record facts it appeared that the general finding of the court on the question of notice, or any other jurisdictional fact was made without any notice or without any showing of other facts essential to the court’s jurisdiction, a very different question would be presented. The complaint could have been made sufficient to withstand the demurrer, if the plaintiffs had set out in their complaint enough of the record to show that no notice of any kind had been given to appellants, or to any one to whom such notice under the drainage statute might be given so as to bind appellants.
10. *468. *45From the decided cases and from the underlying principles controlling the questions involved, the rule is deduced that to render a judgment void, it is not enough that the court did not in fact have jurisdiction *46to render it, but such want of jurisdiction must be apparent upon the face of the record. When a judgment shows on its face that the court or tribunal rendering it had jurisdiction, such judgment can not be assailed collaterally by alleging and proving facts extraneous to the record. If the court is one of general jurisdiction it is presumed to have had the requisite jurisdiction, unless it affirmatively appears from the record that it did not have or acquire such jurisdiction. If it is a court or tribunal of inferior jurisdiction, it must appear affirmatively from the record that such court or tribunal had jurisdiction of the subject-matter of the suit or proceeding and acquired jurisdiction of the parties thereto, or that the court passed on the jurisdictional facts and held them to be sufficient.
6. When the records of such inferior courts and tribunals show either affirmatively, or by necessary implication, that such court or tribunal had jurisdiction of the subject-matter and of the persons, thereafter the same presumptions are indulged as to the regularity of the proceedings of such court or tribunal as are indulged in favor of the proceedings of courts of general jurisdiction, and a pleading to be sufficient to show that such a judgment is subject to collateral attack must set out enough of the-record to show that such court did not in fact have jurisdiction.
The petition for rehearing is therefore overruled.
Ibach, P. J., and Hottel, Shea, Lairy and Caldwell, JJ., concur.Note. — Reported in 103 N. B. 1102; 105 N. B. 936. As to what are collateral attacks upon judgments, see 23 Am. St. 104. Sec, also, under (1, 4) 14 Cyc. 1064; (2, 5) 11 Cyc. 389; (3) 23 Cyc. 1082; (0) 11 Cyc. 693; (7) 14 Cyc. 1043, 1064; (8) 11 Cyc. 691, 693; (10) 23 Cyc. 1088; (11) 23 Cyc. 959, 1088.