delivered the dissenting opinion.
This was an action of ejectment commenced in the Dade Circuit Court for the recovery of certain lands lying in that county. A change of venue was taken to Greene County, where a trial was had and judgment was rendered for the plaintiffs. Both parties trace their title to one John N. Ferguson, as an original source, who was formerly seized of the premises. The record shows, that in 1865 the Merchants’ Bank of St. Louis brought a suit by attachment in the Dade Circuit Court against Ferguson and others on a bill of exchange. The petition was in the usual form, properly verified in conformity with the law as it then existed. To the petition was appended an additional affidavit, stating that to the best of the affiant’s knowledge and belief, the defendants were non-residents of the State. Upon the petition thus verified and the affidavit' of non-residence, a writ of attachment was issued, and was by the sheriff levied on the lands in controversy. An order of publication was also made against the non-resident defendants, notifying them of the commencement of this suit and the nature thereof. This order was properly published in a newspaper in pursuance of law. At a subsequent term of the court, a special judgment was rendered in the cause against the defendants, and an order made for the sale of the lands attached under a special execution. On the margin of the record of this special judgment is written “ erroneous entry.”
*137On a subsequent page of tbe record, and at the same term of the court, is entered another judgment between the same parties, and which appears to be in the same cause, which differs from the one already referred to in the fact that it is a general judgment instead of a special one. Afterwards, the clerk issued a general execution, which was levied on the lands attached, and they were sold by the sheriff to the defendant, and these are the lands now in controversy.
The deed made by the sheriff to the defendant recited the proceedings in the attachment, the rendition of a special judgment, and a sale thereunder, and was properly acknowledged. At the instance of the plaintiff, the court excluded this deed at the trial, and the defendant excepted. It also gave an instruction on the same side, that the sheriff’s deed offered in evidence was wholly void and conferred no title upon the defendant to the lands sued for and was excluded from the jQ17-
The defendant asked an instruction, which was the converse of the one given for the plaintiff, which ihe court refused, and he has now brought the case here by appeal. The principal grounds now urged by plaintiffs’ counsel in support of the judgment are: that the proceedings in the attachment suit were void, because there was no affidavit justifying them, and that the judgment and execution were general, and therefore wholly unwarranted by law.
The affidavit alleged the non-residence of the parties defendant according to the first sub-division of section one of the act respecting attachments. (1 E. C., 1855, p. 238.) But the 5th section of the same act, in defining what the affidavit shall contain, says, that it shall be made by the plaintiff, or some person for him, and shall state, that the plaintiff has a just demand against the defendant, and that the amount which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, is-dollars, and that he has good reason to believe, and does believe, in the existence of one or more of the causes authorizing an attachment under the first section.
*138It is contended, that as the petition stated the essential facts required in the affidavit and was duly verified, that, in conjunction with the affidavit of non-residence, was a substantial compliance with the statute. But we think there is some difficulty in maintaining this view. The petition must state a cause of action, but the attachment is something distinct from, and in addition thereto. • The statute doubtless contemplated, that the affidavit for the attachment should be complete in itself, and contain all the specified requirements. But although we may regard the affidavit as informal and' defective, it does not thence follow, that the subsequent proceedings which resulted in a judgment are entirely void. Between the parties, upon an appeal or writ of error, they might have been reversible, but, in holding them wholly void on a collateral issue in a contest involving the rights of other persons, a different question is presented. In Alexander vs. Haden (2 Mo., 228) it is held, that where a judgment is rendered in a suit by attachment on an affidavit not warranted by the statute, the judgment will be set aside for irregularity even after the lapse of several years. But in that case there was a direct proceeding between the original parties to the suit. No intimation was made that the judgment was an absolute nullity.
The principle has been so constantly acted upon, even from the earliest periods, that it has become axiomatic, that,when a judgment of a court is offered in evidence collaterally in another suit, its validity cannot be questioned for errors which do not affect the jurisdiction of the court that rendered it. Attachment suits founded upon constructive service are essentially in the nature of proceedings in rem, and the seizure of the property, or obtaining possession of the res, is, therefore, the basis of the court’s jurisdiction.
In the case of Cooper vs. Reynolds (10 Wall., 308,) it was decided, that the seizure of the property of the defendant under the proper process of the court, was the foundation of the court’s jurisdiction, and that defective or irregular affidavits and publications of notice, though they might reverse the *139judgment, in such case for error in departing from the directions of the statute, would not have the effect of rendering the judgment or the subsequent proceedings void; and that where there was a valid writ and levy, a judgment of the court, an order of sale, and a sale and sheriffs’ deed, the proceedings could not be held void when introduced collaterally in another suit. The following language of Judge Miller in delivering the judgment is remarkably clear and precise: “Now, in this class of cases, on what does the jurisdiction of the court depend ? It seems to us, that the seizure of the property, or, that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this the court can proceed- no further; with it the court can proceed to subject that property to the demand of the plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment,when such writ is returned into court the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer, whose duty it is to issue the writ, may have failed in some manner to observe all the requisite formalities; but the writ being issued and levied, the affidavit has served its purpose, and, though a revisory court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon defendant’s property.” The same doctrine was re-asserted in Ludlow vs. Ramsey (11 Wall., 581) by the same court. So in Massey vs. Scott (49 Mo., 281,) this court says, that the Circuit Court obtained jurisdiction by the levy of the attachment. It is also intimated, that a publication would be necessary to complete the jurisdiction, but even admitting this theory, it furnishes an authority in the present case; and in Hardin vs. Lee, (51 Mo., 241) where the subject was again considered, it was declared, that in attachment suits the juris*140diction over the subject matter is obtained by the levy thereon of a writ properly issued, and rio matter what, or how great, irregularities may subsequently occur, its judgment in regard thereto will be valid and binding until reversed by error or appeal, or set aside in a direct and appropriate proceeding for that purpose. (See also Freem. on Judg’ts, § 126.) The affidavit, though admittedly defective, was sufficient to support the writ. To say that it was not made under the attachment law, is a sheer assumption, and the action of the clerk and court conclusively shows its fallacy.
As to the judgment and execution, though admittedly informal and irregular, can they be treated as absolutely void in this action % In the case of Massey vs. Scott, above cited, it was held, that, where suit is begun by publication and attachment, the judgment will bind only the property attached; but that a general judgment in such case, although informal, is nevertheless valid till reversed, and will authorize the issue of a special execution against the attached property, and that a court would at any reasonable time correct such a judgment by an entry nunc pro tunc.
If the general execution had been issued and levied on property other than the attached property, the levy and sale under it would have been void. (Clark vs. Holliday, 9 Mo., 702.) The reason for this' is plain enough, because in such a case the property would not have been subject to the jurisdiction of the court. That the judgment and execution in the present case could have been amended is not doubted, and proceedings which are amendable are not void. (Hardin vs. Lee, ubi supra; Cooper vs Reynolds, 10 Wall., 308; Durham vs. Heaton, 28 Ills., 264; Parmlee vs. Hitchcock, 12 Wend., 96; Stewart vs. Severence, 43 Mo., 331.)
In Hunt vs. Loucks (38 Cal., 372) the Court say : “ Like an erroneous judgment, an erroneous execution is valid until set aside upon a direct proceeding brought for that purpose, and, until set aside, all acts which have been done under it are valid. In a collateral action it cannot be brought in question, even by a party to it, much less by a stranger to *141it. Even directly it cannot be attacked by a stranger, for it does not lie in the mouth of A. to say, by it 33. has been made to pay too much money, and therefore all proceedings under it are null and void.” It is a matter that cannot be precisely determined, upon which of the two judgments found upon the record book in this case the execution was issued. The first was a special judgment regular in all its forms, and was the proper judgment authorized in the case. No explanation is given as to how the words “ erroneous entry,” written on the margin of the record, were placed there. For aught that appears, they may have been written there by some wholly Unauthorized person.
There is nothing to show, that this judgment was ever ordered by the court to be set aside or to be for naught held. In such a case,where a doubt is raised between the validity of two acts, the presumption would be in favor of the legality of the proceedings of the court. But, if we concede that a general judgment was actually rendered, upon which a general execution was issued, it by no means follows, that they can be held void collaterally. Had property been sold, other than that on which the writ of attachment was levied, then there can be no question that the sale would have been an utter nullity. But the very property that was sold, and which is here in controversy, was the property that was attached, and thus brought within the jurisdiction of the court. Jurisdiction having attached, the court could legally order it to be sold or disposed of, and though the judgment and execution were unquestionably-irregular and informal, they were still valid until set aside or reversed in a direct proceeding instituted for that purpose, and they could not be impeached or drawn in question in a collateral action.
I am of the opinion that the judgment below should be reversed, and the cause remanded.