dissenting.
I am compelled to dissent on the ground that the majority opinion avoids answering the most important issue advanced by this appeal. The opinion correctly states it as follows: “The plaintiffs contend * * * that the decree of the divorce court was void by reason of the fact that no notice was given to Hugh Rae Hatch, the plaintiff in the divorce suit, of the proposed amendment [i.e., to paragraph IV of Mrs. Hatch’s cross complaint] as allowed by the court.” A very important corollary thereto is whether or not such a decree is vulnerable to collateral attack. It requires clear answer if this appeal is to be correctly resolved.
Moreover, nothing is said in or solved by the majority opinion concerning the necessity or want of necessity of service of the amendment upon Mr. Hatch as a condition precedent to vesting the court with authority to make a decree predicated upon the new matter contained therein. To the contrary, the majority opinion detours the problem of service projected by §1-708, OCLA (ORS 16.430) and rests its conclusion upon a premise not raised by either party and in a manner not decisive of the cardinal question before us. Instead, the majority rests its final conclusion upon a gratuitous holding in these words:
“We are of the opinion, under the alleged and admitted circumstances as shown by the exhibits of the proceedings in the divorce case, that if the divorce court abused its discretion m the matter of allowing the amendment, the judgment was at most voidable and not void.” (Italics mine.)
*309I cannot and, I venture to say, no one will seriously challenge the right of the court in the Hatch suit to have authorized the amendment which it approved in that matter. Whether the court abused its discretion in so doing is not the issue determining the void or voidable character of the decree which subsequently followed. The majority opinion does not travel far enough. It pauses midway in its quest for the solution and rests its ultimate conclusion upon a relatively unimportant and indecisive matter.
Neither Mr. Hatch nor his counsel had notice of the challenged amendment nor an opportunity to traverse the new allegation, for immediately thereafter the court proceeded to hear the matter and on the same day the trial judge entered a decree of divorce in favor of Mrs. Hatch with the following provision:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said Eva M. Hatch have as her separate property the following, to-wit:
“Lots 12, 13,14, 15, and 16, Block 7, to the City of Central Point, Jackson County, Oregon * *
The defendant in this matter relies upon that decree to support her claim of title in the property which is the subject of this suit.
My position is (1) that the so-called amendment to Mrs. Hatch’s cross complaint is a nullity because of the failure to serve it upon her husband and, therefore, it did not supersede the original cross complaint; (2) that the cross complaint was devoid of any specific description of real property owned by Mr. Hatch and that as a result of this pleading status the court never acquired jurisdiction of the subject matter, i.e., the real property described in the decree; and (3) that such a *310jurisdictional defect rendered the decree void and subject to collateral attack insofar as it attempted to decree an interest therein to Mrs. Hatch.
I shall consider these several matters in the order presented above.
Failure to follow the directions of § 1-708, OCLA, rendered the so-called amendment inoperative to supersede Mrs. Hatch’s original pleading in cross complaint. That section reads:
“In all actions at law and suits in equity wherein an amended pleading is filed, such amended pleading shall be served upon all parties to said action or suit who are not in default, but as to all parties to said actions or suits who are in default or against whom a default previously has been entered judgment may be rendered in accordance with the prayer of the original pleading served upon them and neither the amended pleadings nor the process thereon need be served upon such parties in default unless such amended pleading asks for additional relief against such parties in default.”
That statute is plain and unambiguous. It places a premium upon notice. Its effect is to toll further action on the amended pleading until the record reveals that such service was accomplished or was waived. It is mandatory in character and no amendment, even though authorized, becomes efficient or effective unless it is apparent that there has been a complete and satisfactory compliance with § 1-708. If the record is silent in this respect, then the tendered amendment, even though filed, does not operate to supersede the pleading it is designed to amend and is functus officio, conferring no new authority on the court and leaving the party who offers it dependent upon his original pleading for relief.
*311In Cram v. Tippery, 175 Or 575, 584, 155 P2d 558, we held, under authority of §1-708, that where an amended complaint was filed but not served on all the parties defendant, the court was without authority to render judgment against any unserved defendant. Also see Alery v. Alery, Jr., et ux., 193 Or 336, 341, 238 P2d 771. I make no claim for the cases cited beyond the fact that they are authority for the proposition that an amendment of a pleading without service upon the adverse party is, under § 1-708, ineffective against that party and does not supersede the original pleading sought to be amended and that the pleader’s relief against such adversary is, by reason thereof, limited in scope and extent to the allegations of the original pleading.
The amendment was tendered and authorized on the day set for trial (March 31,1952). Mrs. Hatch was in court in person and with counsel. .The record indicates no service of the amendment upon Mr. Hatch, as required by § 1-708, nor waiver of such service. No contention to the contrary is made. It follows that Mrs. Hatch’s tendered amendment was inoperative and the only controlling pleading was her original cross complaint.
Our next point of interest is the scope of the original cross complaint.
I pause to note that jurisdiction of the subject matter must appear from the pleadings and does not depend upon the existence of a suitable cause of action or the evidence subsequently adduced. E. Henry Wemme Co. v. Selling et al., 123 Or 406, 417, 262 P 833; Dippold v. Cathlamet Timber Co., 98 Or 183, 189, 190, 193 P 909, and authorities there cited; Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 7, 137 P 766. It is true, as *312stated in the majority opinion, that it is essential to the jurisdiction that the res against which relief is sought must be within the territorial limits of the court; but that fact alone does not vest the court with power to accord any specific relief with reference thereto, unless the res is subjected by constructive seizure to the exercise of the court’s power by being properly impleaded.
A divorce suit, insofar as it involves the disposition of any interest in real property, is in the nature of a proceeding in rem. In Ross v. Ross et al., 21 Or 9, 13, 26 P 1007, consideration was given to the sufficiency of the pleadings in a divorce suit which failed to describe the real property of the adverse party, and the court there said:
“* * * according to well-settled principles of chancery practice, a decree which is to operate on the title to real property by divesting the title out of one of the parties and transferring it to the other, operates upon the thing itself in the nature of a proceeding in rem, and it is not perceived how the court can properly act upon such a subject when the thing to be affected is undescribed and unknown to the court, and the record is entirely silent in relation to every fact which, in ordinary cases, gives the court jurisdiction and enables it to act.” (Italics mine.)
Concerning the necessity for a seizure of the res as a condition precedent to the exercise of the court’s power with reference thereto, we find in Frederick v. Douglas Co. et al., 176 Or 54, 65, 155 P2d 925, this statement by Mr. Justice Brand :
“In proceedings in rem there are two essential requirements. The first is that the res must be put under control by seizure or some equivalent act *313such as attachment, institutions of a suit in equity, or proceedings to foreclose tax liens. Pennoyer v. Neff, 95 U. S. 714, 24 L.Ed. 565; Baillie v. Columbia Cold Mining Co., 86 Or. 1, 166 P. 965, 167 P. 1167; Willamette Real Estate Co. v. Hendrix, 28 Or. 485, 42 P. 514, 52 Am. St. Rep. 800; 21 C.J.S., Courts, § 84, p. 126.
“By constructive seizure of the property within its territorial jurisdiction the court exerts its power to subject the property seized to judgment. * * * ”
In 3 Bancroft, Code Pleading, 2205, § 1353, under the caption of “Divorce and Separation”, it is said:
“Although the statute authorizes the court to make disposition of the property of the parties, this can be done only where the property is brought before the court by the pleadings. To authorize the court to partition or otherwise dispose of the property of the spouses there must be appropriate allegations in the pleadings either of the plaintiff or the defendant. The ownership of the property and its description must be alleged with such certainty as to identify it. Property not referred to in the pleadings cannot be included in a decree of divorce adjudicating rights in property, since it is not within the jurisdiction of the court. * * *”
To bring the res, that is, the real property, within the jurisdiction of the court in a divorce suit, this court has long ago adopted and since followed an exacting rule of pleading. We find it well and clearly expounded in Senkler v. Berry, 52 Or 212, 215, 96 P 1070, in these words:
“It is now the settled law of this State, that in divorce proceedings the title to real property authorized to be awarded to the successful party by Section 511, B. & C. Comp., is not transferred by force of the statute, but by force of the decree; that to enable the court to act judicially on the subject of property in such cases, and to make a decree that *314shall have the effect of divesting the title to real property out of one of the parties to the suit and transferring it to another, it must appear in the pleadings, not only that such party from whom it is proposed that the title shall be taken is the owner of the property, but also of what that property consists ; and that, as the decree has the effect of transferring the title, it must be one of the muniments of the title and should identify the parcel or parcels intended to be transferred or affected thereby with as great certainty as is required in ordinary conveyances. * * *”
Also see Schafer v. Schafer, 122 Or 620, 639, 260 P 206, 59 ALR 707; Perkins v. Perkins, 72 Or 302, 306, 143 P 995; Ross v. Ross et al., supra, at page 11; Hall v. Hall, 9 Or 452, 456; Bamford v. Bamford, 4 Or 30, 35.
Prom the foregoing we learn that the pleading must not only specifically describe the real property in which title is sought ‘ ‘ with as great certainty as is required in ordinary conveyances” (Senkler v. Berry, supra) but the pleader must allege that the party to be divested is the owner thereof. More is required of the pleader, however, than a sufficient legal description. To give the pleading the quality of completeness there must be a claim for an investment of title in the pleader by a proper allegation or prayer. In short, an averment with reference to the real property, to be effective as a basis for the acquisition of title, must have as its pleaded objective a prospective ownership therein; otherwise, the pleading of the description is ineffectual to lay the basis for a disposition of the title by decree. Perkins v. Perkins, supra, at page 306; Hall v. Hall, supra, at page 456.
"With these long established rules before us, let us now examine the contents of the original cross com*315plaint in Hatch v. Hatch. The nearest approach to the subject of real property is in paragraph XI reading:
“That the defendant is the owner of a yacht which he claims to be worth $48,000.00 now in a Seattle harbor, and is possessed of a Packard automobile in storage in Sacramento, California, which he claims to be of the value of $5,000.00. That in addition thereto the plaintiff is possessed of real and personal property in Jackson County, Oregon, of the probable value of $5,000.00 and did on or about July 25,1945, from the proceeds of an auction sale conducted by him receive the approximate sum of $10,000.00 in cash.”
There is no claim or prayer for any interest therein and, of course, reference to any real property possessed or owned by Mr. Hatch is in the baldest generality. It is plainly patent that the purpose of this allegation was to lay a foundation for the only relief prayed for by Mrs. Hatch, aside from a decree of divorce, and that is for “judgment against the plaintiff for the sum of $5,000.00 in lieu of alimony”.
Even had the amendment been properly made, it would not have availed the pleader of any advantage which would have warranted a decree of an interest in any particularly described real property, for the amendment as tendered and attempted to be made effectual by interlineation did not amend paragraph XI above quoted but was an addition to a subparagraph of paragraph IV (the paragraph of the cross complaint devoted exclusively to a recital of the various items of alleged marital misconduct, made in support of the charge of cruel and inhuman treatment). I illustrate by setting out paragraph IV as it appeared after the tendered amendment:
“That immediately thereafter he conducted a sale attempting to dispose of all of his belongings *316including the real and personal property (said real property is legally described as Lots 12,13,14,15, and 16, Block 7, of the City of Central Point, Jackson County, Oregon * * *) in which defendant herein had an interest and including some personal belongings of the defendant.” (Italics mine.)
The italicized language of the foregoing quotation represents the matter included by interlineation. The significant thing is that neither before nor after the abortive amendment did the cross complaint by allegation or prayer make a claim or ask for a decree of any interest in the subject real property, a further fatal defect in pleading matters of this kind. Perkins v. Perkins, supra; Hall v. Hall, supra.
It has been earnestly suggested (though not reflected in the majority opinion) that that part of paragraph XI reading “That * * * the plaintiff is possessed of real and personal property in Jackson County, Oregon” is sufficient to vest the court with jurisdiction over the subject matter. Whatever may be the rule in other proceedings relating to the disposition of an interest in real property, it is clear that in a divorce suit in Oregon such an allegation is palpably insufficient to give the court power to make any disposition of title to such real property. Here the rule is unusually strict, as manifested by a study of Perkins v. Perkins, supra.
In the Perkins case the defendant wife, in a cross complaint to a divorce suit instituted by her husband, as shown by the record here, specifically described certain real property owned by the husband in these words: “ * * * Six Hundred (600) acres of land of first class farm and grazing land, described as follows to-wit * * * [then follows a particular description *317to parcels totaling 540 acres as situated in Coos county, Oregon].” (Italics mine.) Thereafter, in granting a decree of divorce to the wife, the court vested her with an undivided one-third interest in and to the 540 acres specifically described in her cross complaint and also added a parcel of 80 acres situated in a different section of the same township and range wherein the 540 acres were situated. On appeal this court held, with reference to the additional 80 acres:
“* * * This land was not described in the answer, and it was not mentioned in the evidence. The rule is well established in this state that where a party to a divorce suit asks for a decree of divorce, and desires, also, to obtain a decree for one third of the real property owned in fee by the adverse party, it is incumbent on him to set forth in his pleading a description of such property and to ask for a decree for an undivided one third thereof, and, if he fails to do so, he waives all right thereto, and the court has no power to grant him any part of such property * * * [citing cases]. The decree of the court below, in so far as it attempted to grant to the defendant a part of the west half of the northwest quarter of section 27 in township 29 south, range 14 west of the Willamette meridian, is invalid, and said decree will be so modified as to omit all reference to said parcel of land.” (Italics mine.)
It will be observed that in the Perkins case the rejected description was far more complete than found in the cross complaint in Hatch v. Hatch.
Tested by the foregoing rules the original cross complaint, by reason of the absence of an adequate description of the instant real property, conferred no jurisdiction of the property upon the court and, therefore, the resultant decree in Hatch v. Hatch transferred no title to Mrs. Hatch.
*318With the foregoing results in mind, I now approach the paramount matter for consideration: Is a decree which makes a disposition of an interest in real property, not warranted by the pleadings, vulnerable to a collateral attack such as is here made against the decree in Hatch v. Hatch?
It is a well established principle of law that a decree or judgment on a matter outside an issue raised by the pleadings is a nullity and is nowhere entitled to the least respect as a judicial sentence. McLean v. Porter, 148 Or 262, 271, 35 P2d 664; State ex rel. Dean v. Dean, 136 Or 694, 697, 300 P 1027, 86 ALR 79; May v. Roberts, 133 Or 643, 657, 286 P 546; Reed v. Hollister, 106 Or 407, 415, 212 P 367.
This court has heretofore held in divorce suits that an excessive grant by decree of an interest in real property not supported by proper pleading is jurisdictional and beyond the court’s powers. This being so, it is subject to collateral attack. Note the language employed by this court in Perkins v. Perkins, supra: “* # * ike COurt hag no power to grant him any part of such property * * ®„” (Italics mine.)
This court has defined a want of jurisdiction as a loss of power to act. Marsters v. Ashton, 165 Or 507, 512, 107 P2d 981. The court, speaking through Mr. Justice Rand in Reed v. Hollister, supra, said, at page 414:
££* * * Jurisdiction is said to be the right to adjudicate concerning the subject matter in a given case, and includes not only the power to hear and determine, but also the power to render the particular judgment in the particular case, as well as the power to enforce the judgment when rendered, and jurisdiction of the subject matter means juris*319diction, not only over the particular case, but over the class of cases to which a particular case belongs * * *
Also see State ex rel. v. Crawford, 159 Or 377, 388, 80 P2d 873; Walker v. Fireman’s Fund Ins. Co., 122 Or 179, 191, 257 P 701; Harney Valley Irr. Dist. v. Bolton, 109 Or 486, 491, 221 P 171; Ralston v. Bennett, 93 Or 519, 523, 183 P 766; In re McCormick’s Estate, 72 Or 608, 616, 143 P 915, 144 P 425.
Northwestern Clearance Co. v. Jennings, 106 Or 291, 209 P 875, 210 P 884, was a suit involving a collateral attack upon a previously rendered judgment wherein the court cited with approval Sache v. Wallace, 101 Minn 169, 112 NW 386, 118 Am St Rep 612, 11 Ann Gas 348, 11 LRA NS 803, as follows:
“ ‘When the court goes beyond and outside the issues made by the pleadings, and in the absence of one of the parties determines property rights against him which he has not submitted to it, the authority of the court is exceeded, even though it had jurisdiction of the general subject of the matters adjudicated. Such a departure cannot be held a mere irregularity. * * ”
Later, at page 310 this court holds:
“A judgment of a court acting without jurisdiction or in excess of its jurisdiction is void and subject to collateral attack: 11 Cyc. 702; 23 Cyc. 681, 1074; Wright v. Edwards, 10 Or. 298, 302; Hoover v. King, 43 Or. 285 (72 Pac. 880, 99 Am. St. Rep. 754, 65 L.R.A. 790).”
I submit that if the court had no power to act judicially, it is equivalent to a want of jurisdiction rendering such a decree subject to collateral attack. 49 CJS 822, Judgments § 421.
*320The foregoing conclusions and definitions find support in the following statement from 1 Freeman, Judgments 5th ed, 733, § 354:
“* * * in the actual rendition of the judgment, the court must remain within its jurisdiction and powers. For it is the power or authority behind a judgment, rather than the mere result reached, which determines its validity and immunity from collateral attack. A wrong decision made within the limits of the court’s authority is error correctable on appeal or other direct review, but a wrong, or for that matter a correct, decision where the court in rendering it oversteps its jurisdiction and power is void and mag be set aside either directly or collaterally. Such excess of authority or power is aldn to a want of jurisdiction over the subject matter * * #
“Whether the court lacked power to act in the first instance by reason of its failure to acquire jurisdiction over the subject matter of the parties, or having been invested with such power, proceeded to make a determination outside or beyond the legitimate scope thereof, the result is the same. * * * ’ ’ (Italics mine.)
For the foregoing reasons the decree in Hatch v. Hatch is insufficient to support a claim of fee simple ownership in Mrs. Hatch and the decree in the instant suit should be affirmed insofar as it decrees the plaintiffs Burnett to be the owners in fee simple of the subject property but modified (for the causes assigned in the majority opinion) by subjecting the same to the lien of that certain judgment obtained by Mrs. Hatch in the divorce suit dated September 15, 1945, for $200 support money and the further sum of $100 as attorney’s fees.