dissenting.
The majority does not explain why the phrase “may be found” in ORCP 73A means “physical presence,” and I do not agree that that interpretation is self-evident.1 I would *356hold that defendant’s consent in the retainer agreement to venue in Multnomah County is an agreement to “be found” there.
However, even assuming that a party must be ‘ ‘physically present” in the county where and when application for confession of judgment is made, I cannot agree with the majority that the phrase “has no force and validity” means that the judgment is void for all purposes. ORCP 73A(1) does not state that the judgment is “void,” and Black’s Law Dictionary, on which the majority relies, does not reflect Oregon law as to when a judgment will be set aside.
The majority’s concept of the validity of a judgment reflects the older view, described in the introductory note to Chapter 2, “Validity of Judgment,” Restatement (Second) Judgments 19 (1982):
“As expressed in the first Restatement, the concept of validity of a judgment can be described as follows:
“1. When certain requirements have been met concerning notice, territorial jurisdiction, and subject matter jurisdiction, a judgment is valid.
“2. If those requirements are not met, the judgment is a legal nullity for all purposes.
“3. If those requirements have been met the judgment is unimpeachably effective * * * except that relief may be obtained from its effects through equitable remedies * * *.”
The more recent view is also summarized in Restatement (Second) Judgments, supra:
“The approach taken in the present formulation can be described as follows:
“1. A court may properly render judgment only when certain requirements have been met concerning notice, territorial jurisdiction, and subject matter jurisdiction.
“2. If those requirements have not been met, the judgment may he subject to avoidance and hence being treated as a legal nullity, depending on the nature of the defect concerningthe particular requirement, the opportunity that the complaining party had to challenge the *357defect, and whether there has been reliance on the judgment since its rendition.
“3. If the requirements have been met, the judgment is effective to the extent and with the qualifications accorded a valid judgment * * * except that relief may be obtained from its effects, or at least some of them, through various procedures whose appropriateness depends on the circumstances under which relief is sought.”
Oregon follows that recent approach: A “void” judgment is not per se a legal nullity. ORCP 71B(1), promulgated at the same time as ORCP 73, provides, as pertinent, that, if a motion is made “within a reasonable time,”
“and upon such terms as are just, the court may relieve a party or such party’s legal representative from a judgment for the following reasons [including that] * * * (d) the judgment is void * * (Emphasis supplied.)
Thus, under ORCP 71, a court has the discretion to determine whether or not to set aside a confession of judgment that did not meet the requirements of ORCP 73A.2
However, even if the majority is correct that the judgment is “void,” it is clear that defendant could — and that he did — waive any objection to the judgment on the basis that he could not be “found” in Multnomah County. Even though it is fundamental that a proper judgment may be rendered only when notice and jurisdiction requirements have been met, see Restatement (Second) Judgments, supra, even those requirements may be waived. In State ex rel Karr v. Shorey, 281 Or 453, 575 P2d 981 (1978), the defendant had signed a stipulation permitting entry of an order establishing paternity. About four years later, he sought to have the order set aside, contending that his constitutional notice requirements had been violated. This court held that the defendant’s stipulation did not constitute an “appearance,” that the trial court *358thus did not have jurisdiction over defendant and, therefore, that the order of paternity had to be vacated.
The Supreme Court reversed. The court cited authorities from other jurisdictions holding that a defendant could agree to a court's jurisdiction, and relied primarily on D. H. Overmyer Co. v. Frick Co., 405 US 174, 92 S Ct 775, 31 L Ed 2d 124 (1972). There, the United States Supreme Court held that due process rights to notice and hearing before entry of a civil judgment may be waived, if the waiver is knowing and voluntary. Agreeing with the cited authorities, the Oregon Supreme Court held that
“personal jurisdiction over a defendant may be obtained* * * as the result of consent given by agreement made prior to the filing of an action, suit or other proceeding.” 281 Or at 461.
When a defendant consents to jurisdiction, the defendant also submits to the procedure necessary for the agreed-upon order to be entered. To hold that a defendant did not so agree would mean that the defendant never intended to abide by the agreement. 281 Or at 464.
If a defendant may consent to waive the constitutional requirements of jurisdiction and notice, it is nonsensical to hold that a defendant cannot agree to waive the requirements of a rule of procedure. Defendant can waive them, and he has. In engaging the professional services of plaintiff, he agreed that any dispute over the attorney fee agreement would be governed by Oregon law and litigated in Multnomah County. He knowingly and voluntarily signed the confession of judgment that he knew would be entered in Multnomah County. He requested delay of entry of that judgment. Those facts clearly show that defendant waived any objection to the procedure under which the judgment would be entered. The trial court did not abuse its discretion in refusing to set the judgment aside. I would affirm.
It might also refer to the site at which a debt was incurred, a principal place of business, or locations where service might be effected under ORCP 7.
I would also hold that the court did not abuse its discretion in refusing to set aside the judgment as untimely. When defendant signed the confession of judgment, he knew the date that it was to be entered. He was given notice of that date and also notice that execution on the judgment would follow. Plaintiff executed on defendant’s stock in two companies. However, defendant waited for more than 14 months before moving to set aside the judgment. He did so only when plaintiff’s sale of the stock had resulted in proceeds in excess of $1,000,000.