(specially concurring).
In concurring with the able and articulate opinion of the majority written by Judge TUTTLE, I feel constrained to set down a few remarks about jurisdiction. To my mind, the fundamental error of the court below is contained in its fourth conclusion of law reading thus:
“This suit constitutes a collateral attack on the two State Court final judgements [sic] since each of such judgements is valid on its face such judgements import absolute verity and cannot be set aside or vacated in this proceeding.”
That statement is expressive of views held by a great many people arising doubtless from the fact that it is not difficult to become so enamored of the shibboleths and the nomenclature of the judicial process as to lose sight of its realities and basic functions.
But I do not conceive that the Judiciary is invested with any such absolute power or that its edicts can be considered as possessed of such infallibility. On the other hand, it is my conviction that any court of competent jurisdiction, either state or federal, can adjudge the merits of any suit involving the validity of a final judgment of any other court, state or federal, where the basis for the attack is that the court rendering the questioned judgment did not have jurisdiction to render it, or that such judgment was procured by fraud. These are the grounds of the attack against the two state court judgments here.
This Court is, in my opinion, committed to this principle, Bass v. Hoagland, 5 Cir., 1949, 172 F.2d 205.1 Hoagland sued Bass in the United States District Court for the Eastern District of Texas upon a judgment he had obtained in the United States District Court in Kansas. The judgment recited all of the facts necessary to show jurisdiction of the court and validity of the judgment. The attack of Bass sought to go behind the recitals of the judgment and to show facts which destroyed the right of the Kansas Court to enter the judgment which it had entered. Answering the argument that the court must limit itself, where charges similar to those made here are involved, to the language of the judgment, the opinion states (at pages 208-210):
“It is also well settled law that its [the judgment’s] express recitals import verity; and where the judgment is silent, if the court rendering it is one of record and of general jurisdiction, * * * all presumptions are in favor of its regularity. It is equally well settled that such presumptions may be overcome and that recitals as to things proper to be shown in the record on which the judgment rests may be overborne by reference to that record. It is also settled that a suit on a judgment, being a mode of enforcing it, does not open it to direct attack, and that any attack is collateral. * * *
* * -X- -x- * *
“ -x- * * The answer says there was no evidence heard at all, and this is admitted for the present, and an admitted fact may be used on collateral attack as well as the *516record itself; 49 C.J.S. Judgments, §§ 421, 425 Note 34. The court reporter’s record would show the actual truth. * * * The judgment states the plaintiff was not present at the trial, but only his counsel; and that no defendant was present in person or by counsel, so there could have been no waiver of any right. Bass, living in Texas, did not know that the case had been called for trial till he was served in the present suit. This does not look like due process of law under the Constitution, nor even like a judicial trial. Bass’ want of diligence In not sooner finding out what had become of his case is not questioned here, but the constitutional validity of this judgment under the admitted facts. Strong ground has been taken by the Supreme Court, and in strong language, against treating eases as in default which were not so. In Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, * * * On page 43 [should be 413-414 of 167 U.S., on page 843 of 17 S.Ct.] it is said: ‘The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have an inherent power to deny all right to defend an action and to render decrees without any hearing whatever is in the very nature of things to convert the court exercising such authority into an instrument of wrong and oppression, and hence to strip it of the attribute of justice upon which the exercise of judicial power necessarily depends/ "
Throughout the complaint in the case before us the state court judgments are attacked on the ground that procedural due process was not observed in their rendition.2 Appellees rely on the two judgments as a defense against the attack of appellants. Procedural due process required that all provisions of the Texas statutes concerning process, pleadings and proof should be observed if the judgments are to have validity in the support of their title.
In Griffin v. Griffin, 1946, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635, the Supreme Court denied enforcement in the District of Columbia of a judgment rendered by a New York State Court because of the failure of the litigant relying upon the judgment to show observance of the requirements of New York statutes as to notice. Referring to several Supreme Court cases and to Restatement of Judgments, Par. 11, Comment C, the Supreme Court said (327 U.S. at pages 228-229, 66 S.Ct. at page 560):
“A judgment obtained in violation of procedural due process is not entitled to full faith and credit when sued upon in another jurisdiction * -» * Moreover, due process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.”3
*517In White v. Union Producing Co., 5 Cir., 1944, 140 F.2d 176, at page 178, we stated:
“Fraud vitiates everything it touches, it is difficult to define; there is no absolute rule as to what facts constitute fraud; and the law does not provide one ‘lest knavish ingenuity may avoid it.’ ”
A judgment obtained by fraud is a nullity. To establish the fraud as well as the want of jurisdiction to render the judgment for failure to observe the requirements of the state statutes, the court in which the judgment is brought in question may consider the entire record in the case, pleadings, process and evidence, and may, in proper cases, consider extrinsic evidence.4
The case before us presents a typical example where equity will intervene to insure that appellants are condemned only after hearing and that the whole proceeding will be invested with “the attribute of justice upon which the exercise of judicial power necessarily depends.”
. Opinion by Judge Sibley, Judge Hutcheson dissenting.
. The proceedings are attacked in detail on the grounds that plaintiff’s pleadings in the state court did not follow Texas statutes requiring that a plaintiff plead his title link by link and to plead the interest of the defendant as well as the description of the land by tract numbers; they are attacked, as the opinion of Judge Tuttle points out, for want of evidence necessary to make out plaintiff’s case as well as for defects in the effort at constructive service by publication.
. See also Smith v. O’Grady, 1941, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Hansberry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; Davis v. Wechsler, 1923, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; United Shoe Machinery Co. v. United States, 1922, 258 U.S. 451, 452, 42 S.Ct. 363, 66 L.Ed. 708; Ward v. Board of County Commissioners of Love County, Oklahoma, 1920, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; Postal Telegraph Cable Co. v. City of Newport, 1918, 247 U.S. 464, 38 S.Ct. 566, 62 L.Ed. 1215; Bigelow v. Old Dominion Copper Mining & Smelting Co., 1912, 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009, and 30 A American Jurisprudence, Judgments, §§ 880 et seq.
. Simon v. Southern Railway Co., 1915, 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492; 30 A American Jurisprudence, Judgments, §§ 783-808; and see also ib. §§ 657, 855, 878-879.