The question whether the corporation counsel should, or not, have the power to confess judgments against the city is purely an academic one, so far as this court is concerned, for the legislature has enacted that he shall not have it. Hence, there is no excuse for straining in order to establish the same rule by decision, for the enactment of the legislature is as effective without as with a decision of this court. And yet such a holding is vigorously contended for, although its accomplishment would create a precedent hitherto unknown to our jurisprudence, viz., that a taxpayer may have a judgment against a city set aside in equity without showing that it was obtained through fraud or collusion, and without even questioning that the city was justly *Page 216 indebted in an amount stated in a judgment which was rendered by a court having jurisdiction of both the parties and the subject-matter. This the city cannot do and no more can the taxpayer, for he acquires by the statute — not greater powers than the municipal authorities — but the right to do what the latter may, but neglects or wrongfully refuses to do. The purpose of the statute is to enable the taxpayer to prevent waste of the public funds, not to add to the public burdens by bringing suits to correct the pinholes in the procedure by which the rights of the city and its opposing litigants are justly determined. So the foundation of any such cause of action must rest in the fact that the municipality is about to be compelled to pay that which it does not owe, and it must be pleaded. Here there is no such allegation either in substance or effect, the complaint proceeding on the theory that it is one of the rights of a taxpayer under the statute to have a judgment set aside for a mere irregularity. That it is an irregularity of which the plaintiff complains and nothing more is apparent on the very first attempt to analyze it. To speak of the judgment as being founded on an act which was without power may at first convey an impression to the mind that, therefore, it is void; but such effect can be but momentary, for the so-called lack of power is found to be, not in the court, which had jurisdiction of both the parties and the subject-matter, but in the officer, who presumed to make and verify the offer of judgment. Some other officer than the corporation counsel should have made the admission, it is said, to wit, the comptroller. The corporation counsel supposed he had authority and made affidavit to that effect, so that the proceedings were, on their face, regular. Now, whenever it happens that judgments are entered on insufficient evidence, or without evidence, or on perjured evidence, or on admissions of counsel not authorized, the judgments are not void, they are only irregular. It is elementary law that where the court has jurisdiction of the subject-matter and the parties are before it by due service of proper process, the jurisdiction is never ousted by the erroneous exercise of the power which it confers, *Page 217 which may be of such a character as to occasion reversal on appeal, or call for an order setting it aside on motion, but the judgment is not void. (Black on Judgments, vol. I, 215, 244.) The judgments in question were not entered on confession, but in actions in the Supreme Court wherein the court had acquired jurisdiction before the offer of judgment was made, and the judgment entered thereon was valid, although it be conceded that the corporation counsel had no right to make the affidavit without the direction of the comptroller. As it is a valid judgment the taxpayer who seeks to set it aside must at least show merits. Independently of statute, it has always been the practice of our courts from the earliest times, in cases wherein the setting aside of a judgment for irregularity is sought, to require it to be shown that the judgment, as it stands, is unjust and the defense meritorious. This complaint shows nothing of the kind. It does not allege that the city has suffered, or will sustain, injury because of the entry of the judgment, nor is it even hinted in the complaint that the entry of the judgment was due to fraud or collusion. To have proved all the facts alleged in the complaint, therefore, would not have entitled the plaintiff to a judgment setting aside the judgment complained of, and, hence, the demurrer to it was properly sustained.
While concurring generally in the views expressed by Judge O'BRIEN, I desire, by this memorandum, to call special attention to a rule of universal application, the integrity of which is now threatened.