435 Time Limits For Moving To Vacate Void Judgme-Merged

§ 435. Time limits for moving to vacate void judgments, 49 C.J.S.
Judgments § 435
49 C.J.S. Judgments § 435
Corpus Juris Secundum | August 2021 Update
Judgments
Francis C. Amendola, J.D.; John Bourdeau, J.D.; James Buchwalter, J.D.; Paul M. Coltoff, J.D; Cecily
Fuhr, J.D.; Lonnie E. Griffith, Jr., J.D.; Glenda K. Harnad, J.D.; Janice Holben, J.D.; John Kimpflen,
J.D.; William Lindsley, J.D.; Kristina E. Music Biro, J.D., of the staff of the National Legal Research
Group, Inc.; Thomas Muskus, J.D.; Sally J.T. Necheles, J.D., LL.M.; Jeffrey J. Shampo, J.D.; Kimberly C.
Simmons, J.D.; and Eric C. Surette, J.D.
XI. Alteration of and Relief from Judgment
C. Opening and Vacating
4. Proceedings and Relief
b. Time for Application
§ 435. Time limits for moving to vacate void judgments
Topic Summary | References | Correlation Table
West's Key Number Digest

West's Key Number Digest, Judgment 386(3), 386(4)
A void judgment, at least if void on its face, generally may be attacked at any time.
A judgment that is void, as opposed to voidable,1 may generally be attacked at any time,2
irrespective of the principle of waiver.3 However, once the void judgment has been attacked and the
attack repelled, the same party cannot thereafter attack the judgment again and again on the same
grounds.4 While there is authority that it must be brought within a reasonable time,5 it has also been
held that such a motion is not governed by the requirement that a motion for relief from judgment
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 435. Time limits for moving to vacate void judgments, 49 C.J.S. Judgments § 435
be filed within a reasonable time.6 Delay does not bar a motion to set aside such a judgment, unless
it has been so great that the rights of innocent persons may be prejudicially affected.7
A definite time limit of a statute8 or rule of civil procedure9 governing relief from a judgment does
not apply to a void judgment, at least in the absence of exceptional circumstances.10 Conversely,
where the parties may not collaterally attack a judgment for lack of jurisdiction, there is no reason
to permit a belated direct attack on the judgment under a rule governing a motion for relief from
a judgment.11
The rule that the judgment may be attacked at any time especially applies if the judgment is void on
the face of the record or judgment roll.12 Matters appearing on the record that come within this rule
include the unauthorized entry of judgment,13 absence of process,14 and a nonamendable defect.15
The principle that void judgments may be vacated at any time includes judgments vacated as
void for want of jurisdiction,16 lack of notice of the suit17 or defective service of process,18
based on a complaint that does not states a cognizable cause of action,19 or because the judgment
resulted in the denial of a constitutional right,20 or was entered as the result of clerical mistake
or inadvertence.21 While when a court's power to act is controlled by statute, any action taken by
the court that exceeds its statutory jurisdiction is void and may be attacked at any time,22 it has
been held elsewhere that a motion for relief from a judgment based on a challenge to a court's
competency (in the sense of compliance with statutory prerequisites to its exercise of jurisdiction,
as opposed to the existence of subject matter jurisdiction) may not be brought at any time, but is
subject to the time limit in a statute governing relief from a judgment.23
Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1 Fla.—In re Begg's Estate, 152 Fla. 277, 12 So. 2d 115 (1943).
Ill.—Parrish v. Glen Ellyn Sav. & Loan Ass'n, 193 Ill. App. 3d 629, 140 Ill. Dec. 561, 550 N.E.2d 43 (2d
Dist. 1990).
Iowa—Johnson v. Mitchell, 489 N.W.2d 411 (Iowa Ct. App. 1992).
Tex.—Bayoud v. Bayoud, 797 S.W.2d 304 (Tex. App. Dallas 1990), writ denied, (Jan. 30, 1991).
Va.—Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216 (1994).
2 Ala.—Boykin v. Law, 946 So. 2d 838 (Ala. 2006).
Ill.—In re Marriage of Allen, 265 Ill. App. 3d 208, 202 Ill. Dec. 694, 638 N.E.2d 340 (4th Dist. 1994).
Ill.—People v. Robinson, 2015 IL App (1st) 130837, 394 Ill. Dec. 126, 35 N.E.3d 1095 (1st Dist. 2015).
Ind.—Beanblossom v. State, 637 N.E.2d 1345 (Ind. Ct. App. 1994).
Kan.—Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 24 P.3d 113 (2001).
La.—LaBove v. Theriot, 597 So. 2d 1007 (La. 1992).
Neb.—Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).

N.C.—Bell Atlantic Tricon Leasing Corp. v. Johnnie's Garbage Service, Inc., 113 N.C. App. 476, 439 S.E.2d
221 (1994).
Ohio—Sampson v. Hooper Holmes, Inc., 91 Ohio App. 3d 538, 632 N.E.2d 1338 (9th Dist. Summit County
1993).
Okla.—Oklahoma Tax Com'n v. City Vending of Muskogee, Inc., 1992 OK 110, 835 P.2d 97 (Okla. 1992).
R.I.—Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002).
Pa.—Barron v. City of Philadelphia, 160 Pa. Commw. 392, 635 A.2d 219 (1993).
Wash.—Allstate Ins. Co. v. Khani, 75 Wash. App. 317, 877 P.2d 724 (Div. 1 1994).
As to the invalidity of a judgment as ground for vacating it, see § 399.
Lack of notice of trial
Fla.—Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988).
Lengthy delay
A lengthy delay before moving to set aside a judgment is acceptable only when the court considers the
judgment to be void.
Fla.—Business Credit Leasing, Inc. v. Engineered Disposal Systems, Inc., 543 So. 2d 409 (Fla. 4th DCA
1989).
3 Ill.—People v. Simmons, 256 Ill. App. 3d 651, 195 Ill. Dec. 295, 628 N.E.2d 759 (1st Dist. 1993).
4 Ga.—Bates v. Bates, 317 Ga. App. 339, 730 S.E.2d 482 (2012).
5 Ala.—Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).

Idaho—McGrew v. McGrew, 139 Idaho 551, 82 P.3d 833 (2003).
Kan.—Subway Restaurants, Inc. v. Kessler, 273 Kan. 969, 46 P.3d 1113 (2002).
Minn.—Bode v. Minnesota Dept. of Natural Resources, 612 N.W.2d 862 (Minn. 2000).
Miss.—Ladner v. Logan, 857 So. 2d 764 (Miss. 2003).
Nev.—Deal v. Baines, 110 Nev. 509, 874 P.2d 775 (1994).
N.J.—Friedman v. Monaco and Brown Corp., 258 N.J. Super. 539, 610 A.2d 885 (App. Div. 1992).
Utah—Workman v. Nagle Const., Inc., 802 P.2d 749 (Utah Ct. App. 1990).
W. Va.—Savas v. Savas, 181 W. Va. 316, 382 S.E.2d 510 (1989).
As to whether the application on this ground is subject to the defense of laches, see § 443.
Any reasonable time
Alaska—Beam v. Adams, 749 P.2d 366 (Alaska 1988).
6 Alaska—Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).
Ala.—Ex parte Full Circle Distribution, L.L.C., 883 So. 2d 638 (Ala. 2003).
Wis.—Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985).
Judgment void from inception
A rule requiring that a party who moves for relief from a judgment on the ground that the judgment is void
must make the motion within a reasonable time did not apply where the judgment was void from its inception.
Mo.—State ex rel. Houston v. Malen, 864 S.W.2d 427 (Mo. Ct. App. S.D. 1993).
7 Ky.—Hill v. Walker, 297 Ky. 257, 180 S.W.2d 93, 154 A.L.R. 814 (1944).
8 Ill.—DiNardo v. Lamela, 183 Ill. App. 3d 1098, 132 Ill. Dec. 500, 539 N.E.2d 1306 (2d Dist. 1989).
Wis.—Foreclosure of Tax Liens Pursuant to Section 75.521 Wisconsin Statutes by Waukesha County, List
of Tax for the Year 1973, No. 12 v. Young, 106 Wis. 2d 244, 316 N.W.2d 362, 45 A.L.R.4th 437 (1982).
9 Alaska—Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).
Ariz.—Brooks v. Consolidated Freightways Corp. of Delaware, 173 Ariz. 66, 839 P.2d 1111 (Ct. App. Div.
1 1992).
Kan.—Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 847 P.2d 1341 (1993).
N.C.—Nye, Mitchell, Jarvis & Bugg v. Oates, 109 N.C. App. 289, 426 S.E.2d 291 (1993).
Ohio—Cylinder Leasing & Equip. v. Verbon, 63 Ohio Misc. 2d 401, 631 N.E.2d 179 (C.P. 1992).
Wash.—Mitchell v. Kitsap County, 59 Wash. App. 177, 797 P.2d 516 (Div. 2 1990).
10 Haw.—Calasa v. Greenwell, 2 Haw. App. 395, 633 P.2d 553 (1981).
11 Ohio—Sturgill v. Sturgill, 61 Ohio App. 3d 94, 572 N.E.2d 178 (2d Dist. Montgomery County 1989).
12 Ala.—Boykin v. Law, 946 So. 2d 838 (Ala. 2006).

Cal.—Andrisani v. Saugus Colony Limited, 8 Cal. App. 4th 517, 10 Cal. Rptr. 2d 444 (2d Dist. 1992).

Fla.—McGee v. McGee, 156 Fla. 346, 22 So. 2d 788 (1945).

Idaho—Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935).
Ind.—Matter of R.R., 587 N.E.2d 1341 (Ind. Ct. App. 1992).
Okla.—Graff v. Kelly, 1991 OK 71, 814 P.2d 489 (Okla. 1991).
13 Pa.—Jones v. Seymour, 321 Pa. Super. 32, 467 A.2d 878 (1983).
14 Okla.—Bailey v. Campbell, 1991 OK 67, 862 P.2d 461 (Okla. 1991).
15 Ga.—Smyrna Marine, Inc. v. Stocks, 172 Ga. App. 426, 323 S.E.2d 286 (1984).
16 Alaska—Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

Colo.—People in Interest of N.N.U., 819 P.2d 1107 (Colo. App. 1991).
Conn.—Misinonile v. Misinonile, 190 Conn. 132, 459 A.2d 518 (1983).
Ill.—Morey Fish Co. v. Rymer Foods, Inc., 158 Ill. 2d 179, 198 Ill. Dec. 409, 632 N.E.2d 1020 (1994).
Ind.—Person v. Person, 563 N.E.2d 161 (Ind. Ct. App. 1990).
Kan.—State v. Breedlove, 285 Kan. 1006, 179 P.3d 1115 (2008).
La.—Barry v. Barry, 606 So. 2d 1391 (La. Ct. App. 2d Cir. 1992).
Minn.—Peterson v. Eishen, 512 N.W.2d 338 (Minn. 1994).
N.Y.—Matter of Victor G., 162 Misc. 2d 151, 616 N.Y.S.2d 447 (Fam. Ct. 1994).
Ohio—CompuServe, Inc. v. Trionfo, 91 Ohio App. 3d 157, 631 N.E.2d 1120 (10th Dist. Franklin County
1993).
Utah—Van Der Stappen v. Van Der Stappen, 815 P.2d 1335 (Utah Ct. App. 1991).
Wis.—Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 (2004) (recognizing
rule).
No basis for relief
Error, if any, in awarding attorney's fees as part of judgment did not deprive the trial court of subject matter
jurisdiction and did not provide a basis for granting relief from that portion of the judgment more than one
year later.
Fla.—South Seas Marine, Inc. v. Saab, 585 So. 2d 959 (Fla. 4th DCA 1991).
17 Fla.—Kennedy v. Richmond, 512 So. 2d 1129 (Fla. 4th DCA 1987).
Ill.—Prudential Property and Cas. Ins. Co. v. Dickerson, 202 Ill. App. 3d 180, 147 Ill. Dec. 514, 559 N.E.2d
854 (1st Dist. 1990).
18 Ill.—Hoppa v. Schermerhorn, 192 Ill. App. 3d 832, 140 Ill. Dec. 16, 549 N.E.2d 667 (1st Dist. 1989).
Utah—Garcia v. Garcia, 712 P.2d 288 (Utah 1986).
Utah—Utah Down Syndrome Foundation, Inc. v. Utah Down Syndrome Ass'n, 2012 UT 86, 293 P.3d 241
(Utah 2012).
19 Ill.—Charles v. Gore, 248 Ill. App. 3d 441, 187 Ill. Dec. 963, 618 N.E.2d 554 (1st Dist. 1993).
20 Colo.—People in Interest of N.N.U., 819 P.2d 1107 (Colo. App. 1991).

Due process
21 Fla.—St. Lucie Estates v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 133 So. 841 (1930).
22 Ill.—In re A.H., 195 Ill. 2d 408, 254 Ill. Dec. 737, 748 N.E.2d 183 (2001).
23 Wis.—Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 (2004).
End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

§ 436. Application for vacation of judgment as not subject..., 49 C.J.S. Judgments §...
Judgments
§ 436. Application for vacation of judgment as not subject to statutory time limits

West's Key Number Digest, Judgment 386(1)
An application for vacation of a judgment, invoking the court's inherent power, is generally
not subject to time limits in statutes or rules of civil procedure.
Where an application for relief from a judgment is not made under a statute or rule, but invokes
the court's inherent power,1 the time limit in that statute or rule2 is generally not applicable.3

§ 436. Application for vacation of judgment as not subject..., 49 C.J.S. Judgments §...
Footnotes
1 § 394.
2 § 437.
3 Ariz.—Vazquez v. Dreyfus, 34 Ariz. 184, 269 P. 80 (1928).

Colo.—Peterson v. Vanderlip, 86 Colo. 130, 278 P. 607 (1929).
Idaho—Rice v. Rice, 46 Idaho 418, 267 P. 1076 (1928).
N.D.—Ellison v. Baird, 70 N.D. 226, 293 N.W. 793 (1940).
As to the time for opening default judgments, see §§ 582 et seq.

Government Works.

§ 437. Time limits in statutes or rules for motion for..., 49 C.J.S. Judgments §...
Judgments
§ 437. Time limits in statutes or rules for motion for opening or vacating judgment

West's Key Number Digest, Judgment 386(1), 386(6), 386(7)
Time limits in statutes or rules of civil procedure for moving for relief from a judgment must
be observed when applications are made under those provisions, and while certain motions
may be brought within a reasonable time, time limits are generally prescribed when the
motion is brought on such grounds as mistake, excusable neglect, newly discovered evidence,
or fraud.
Time limits in statutes or rules of civil procedure for moving for relief from a judgment must be
observed when applications are made under those provisions.1 The court's power under a statute
or rule over the judgment absolutely ceases on the expiration of that time,2 absent a showing of

fraud3 or that the parties waived the time limit.4 The failure to request, within the required time,
that the judgment be opened may be a jurisdictional bar to granting relief.5
While statutes or rules may require that a motion made on certain grounds be brought within
a reasonable time,6 generally a definite time limit is prescribed if the grounds for relief are
mistake, inadvertence, surprise or excusable neglect, newly discovered evidence, or fraud,
misrepresentation, or other misconduct of the adverse party.7 The prescribed time limit may not
be judicially enlarged.8 Therefore, a motion based on excusable neglect may be deemed untimely,
even if the ground for the delay is reasonable.9 On the other hand, even though a motion raising one
of the grounds subject to a time limit has been filed within that limit, a court may also be required to
determine, under all the circumstances, if it was filed within a reasonable time,10 because the rule
may provide that the motion must be made within a reasonable time and not more than a specified
period.11 It has accordingly been said that the specified time limit represents the extreme limit of
the reasonable time for making the motion.12 Where special considerations militate strongly for
limiting the time to vacate a valid judgment, a court may reject a motion that might be timely in
other circumstances.13
What constitutes a reasonable time within which to file a motion for relief from a judgment is a
matter of discretion.14 The determination usually depends on the facts of each case,15 taking into
consideration the interest in finality, the reason for delay, the litigant's ability to learn earlier of
the alleged grounds, and prejudice to other parties.16 For instance, where a judgment is entered
without a party's knowledge, what constitutes a reasonable time to bring a motion for relief from
that judgment depends on when that party learned about the judgment.17 The length of time that
elapsed from the date of the judgment to the date of filing the motion must be considered,18 and it
has been said that one year is reasonable, as a general rule.19 Factors beyond the absolute length
of time before filing the motion are also important, including the burden on the nonmoving party
of asserting a claim after relief has been granted, and the movant's degree of fault in not bringing
the motion sooner.20
Footnotes
1 Alaska—Sengupta v. University of Alaska, 139 P.3d 572, 211 Ed. Law Rep. 481 (Alaska 2006).
Cal.—Thompson v. Cook, 20 Cal. 2d 564, 127 P.2d 909 (1942).
Conn.—Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008).
Ill.—King v. King, 130 Ill. App. 3d 642, 85 Ill. Dec. 874, 474 N.E.2d 834 (5th Dist. 1985).
Kan.—Brooks v. National Bank of Topeka, 153 Kan. 831, 113 P.2d 1069 (1941).

Mont.—Scott v. Higgins, 2007 MT 33N, 337 Mont. 530, 168 P.3d 701 (2007).
S.D.—Crothers v. Crothers, 2001 SD 78, 630 N.W.2d 103 (S.D. 2001).
2 Alaska—Lowe v. Lowe, 817 P.2d 453 (Alaska 1991).
Ariz.—Hartford Acc. & Indem. Co. v. Sorrells, 50 Ariz. 90, 69 P.2d 240 (1937).
Cal.—Thompson v. Cook, 20 Cal. 2d 564, 127 P.2d 909 (1942).
Conn.—Gallagher v. Gallagher, 29 Conn. App. 482, 616 A.2d 281 (1992).
Fla.—Hartley v. Andriuli, 595 So. 2d 311 (Fla. 2d DCA 1992).
Ill.—Rome Soap Mfg. Co. v. John T. La Forge & Sons, 322 Ill. App. 281, 54 N.E.2d 252 (1st Dist. 1944).
Mo.—Samazin v. Director of Revenue, 876 S.W.2d 50 (Mo. Ct. App. W.D. 1994).
Tenn.—Payne v. Eureka-Security Fire & Marine Ins. Co., 173 Tenn. 659, 122 S.W.2d 431 (1938), judgment
aff'd, 175 Tenn. 134, 133 S.W.2d 456 (1939).
3 Conn.—Gallagher v. Gallagher, 29 Conn. App. 482, 616 A.2d 281 (1992).
As to whether fraudulent concealment tolls the period, see § 442.
4 Conn.—Gallagher v. Gallagher, 29 Conn. App. 482, 616 A.2d 281 (1992).
5 Ala.—Schneider Nat. Carriers, Inc. v. Tinney, 776 So. 2d 753 (Ala. 2000).
Haw.—Child Support Enforcement Agency v. Doe, 98 Haw. 499, 51 P.3d 366 (2002).
6 Kan.—Matter of Marriage of Larson, 19 Kan. App. 2d 986, 880 P.2d 1279 (1994), aff'd, 257 Kan. 456, 894
P.2d 809 (1995).
Miss.—R.N. Turnbow Oil Investments v. McIntosh, 873 So. 2d 960 (Miss. 2004).
N.C.—Matter of Hall, 89 N.C. App. 685, 366 S.E.2d 882 (1988).
N.D.—Bellefeuille v. Bellefeuille, 2001 ND 192, 636 N.W.2d 195 (N.D. 2001).
Ohio—Elyria Twp. Bd. of Trustees v. Kerstetter, 91 Ohio App. 3d 599, 632 N.E.2d 1376 (9th Dist. Lorain
County 1993).
W. Va.—White v. Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992).
Twenty-eight years
Motion for relief from a final judgment, which was filed 28 years after entry of the judgment, was untimely,
regardless of the grounds for which relief was sought.
W. Va.—Corathers v. Facemire, 185 W. Va. 78, 404 S.E.2d 769 (1991).
7 Ala.—Osborn v. Roche, 813 So. 2d 811 (Ala. 2001).
Alaska—Sengupta v. University of Alaska, 139 P.3d 572, 211 Ed. Law Rep. 481 (Alaska 2006).
Cal.—Estate of Anderson, 149 Cal. App. 3d 336, 196 Cal. Rptr. 782 (1st Dist. 1983).
Colo.—Southeastern Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167 (Colo.
1993).
Fla.—Sclafano v. Sclafano, 627 So. 2d 1173 (Fla. 4th DCA 1993).
Idaho—Ade v. Batten, 126 Idaho 114, 878 P.2d 813 (Ct. App. 1994).
Ind.—In re Marriage of M.E., 622 N.E.2d 578 (Ind. Ct. App. 1993).
Kan.—Matter of Marriage of Larson, 19 Kan. App. 2d 986, 880 P.2d 1279 (1994), aff'd, 257 Kan. 456, 894
P.2d 809 (1995).
La.—State Through Dept. of Health and Human Resources, Office of Family Sec. in Interest of Lymuel v.
Duvigneaud, 602 So. 2d 792 (La. Ct. App. 4th Cir. 1992).
Mass.—Lopes v. City of Peabody, 430 Mass. 305, 718 N.E.2d 846 (1999).
Miss.—Mitchell v. Nelson, 830 So. 2d 635 (Miss. 2002).
Mo.—Hewlett v. Hewlett, 845 S.W.2d 717 (Mo. Ct. App. W.D. 1993).
Mich.—Rogoski v. City of Muskegon, 107 Mich. App. 730, 309 N.W.2d 718 (1981).
Minn.—Chapman v. Special School Dist. No. 1, 454 N.W.2d 921 (Minn. 1990).
Neb.—DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994).
Ohio—Miami Sys. Corp. v. Dry Cleaning Computer Sys. Inc., 90 Ohio App. 3d 181, 628 N.E.2d 122 (1st
Dist. Hamilton County 1993).
Utah—Richins v. Delbert Chipman & Sons Co., Inc., 817 P.2d 382 (Utah Ct. App. 1991).
Duress

Since the ground asserted for relief from a judgment, duress, was clearly within a rule allowing relief from
a judgment because of misconduct by another party, the action was barred by the one-year time limitation.
Vt.—Levinsky v. State, 146 Vt. 316, 503 A.2d 534 (1985).
8 Alaska—Farrell By and Through Farrell v. Dome Laboratories, a Div. of Miles Laboratories, Inc., 650 P.2d
380 (Alaska 1982).
Fraud
A trial court may not enlarge the time for a motion for relief from a final judgment based on fraud, although
it is vested with broad discretion to act within the time limit.
Ala.—Goza v. Goza, 470 So. 2d 1262 (Ala. Civ. App. 1985).
9 Minn.—Chapman v. Special School Dist. No. 1, 454 N.W.2d 921 (Minn. 1990).
10 W. Va.—White v. Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992).
11 Mass.—Gath v. M/A-Com, Inc., 440 Mass. 482, 802 N.E.2d 521 (2003).
W. Va.—Savas v. Savas, 181 W. Va. 316, 382 S.E.2d 510 (1989).
12 Nev.—Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 849 P.2d 305 (1993) (holding modified on other
grounds by, Willard v. Berry-Hinckley Industries, 469 P.3d 176, 136 Nev. Adv. Op. No. 53 (Nev. 2020)).
R.I.—Sansone v. Morton Mach. Works, Inc., 957 A.2d 386 (R.I. 2008).
13 Ohio—Larson v. Umoh, 33 Ohio App. 3d 14, 514 N.E.2d 145 (8th Dist. Cuyahoga County 1986).
14 Kan.—Matter of Marriage of Larson, 19 Kan. App. 2d 986, 880 P.2d 1279 (1994), aff'd, 257 Kan. 456, 894
P.2d 809 (1995).
Mass.—Gath v. M/A-Com, Inc., 440 Mass. 482, 802 N.E.2d 521 (2003).
Mont.—In re Marriage of Waters, 223 Mont. 183, 724 P.2d 726 (1986).
S.C.—Coleman v. Dunlap, 303 S.C. 511, 402 S.E.2d 181 (Ct. App. 1991), opinion aff'd, 306 S.C. 491, 413
S.E.2d 15 (1992).
Vt.—Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 543 A.2d 1320 (1988).
15 Alaska—Morgan v. Morgan, 143 P.3d 975 (Alaska 2006).
Ala.—Ex parte W.J., 622 So. 2d 358 (Ala. 1993).
P.2d 809 (1995).
N.C.—Brown v. Windhom, 104 N.C. App. 219, 408 S.E.2d 536 (1991).
N.D.—Bellefeuille v. Bellefeuille, 2001 ND 192, 636 N.W.2d 195 (N.D. 2001).
S.C.—Coleman v. Dunlap, 303 S.C. 511, 402 S.E.2d 181 (Ct. App. 1991), opinion aff'd, 306 S.C. 491, 413
S.E.2d 15 (1992).
Threshold inquiry
The determination of what is a reasonable time is a threshold inquiry when reviewing a motion brought
pursuant to a court rule allowing relief from a judgment within a reasonable time.
N.M.—Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154 (2000), as corrected, (Feb.
15, 2000).
16 Ala.—Ex parte W.J., 622 So. 2d 358 (Ala. 1993).
Alaska—Rowland v. Monsen, 135 P.3d 1036 (Alaska 2006).
P.2d 809 (1995).
Utah—Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 (Utah 2006).
17 Idaho—McGrew v. McGrew, 139 Idaho 551, 82 P.3d 833 (2003).
18 Ind.—Jordan v. State, 549 N.E.2d 382 (Ind. Ct. App. 1990).
19 N.D.—Kopp v. Kopp, 2001 ND 41, 622 N.W.2d 726 (N.D. 2001).
20 Ohio—Taylor v. Haven, 91 Ohio App. 3d 846, 633 N.E.2d 1197 (12th Dist. Butler County 1993).


Government Works.

Judgments
§ 438. Time limits in statutes or rules for motion for opening or vacating judgment
—Prior judgment reversed or satisfied, or prospective application inequitable

Motions for relief from a judgment on the grounds that the prior judgment has been reversed
or otherwise vacated, it is no longer equitable that the judgment should have prospective
application, or the judgment has been satisfied or released, generally are not subject to
definite time limits.
Unless otherwise provided in a rule,1 a motion for relief from a judgment on the ground that the
prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application,2 or that the judgment has been

satisfied, released, or discharged,3 is not subject to a definite time limit. While it has been held
that a motion for relief on these grounds may be brought at any time after the entry of judgment,4
it has also been held that a motion for relief from a judgment based on the fact that the judgment
has been satisfied, released, or discharged,5 the prior judgment on which it is based has been
reversed or otherwise vacated,6 or that it is no longer equitable for the judgment to have prospective
application7 must be filed within a reasonable time after the entry of the judgment.
Footnotes
1 Rule included satisfied judgments
Idaho—Ade v. Batten, 126 Idaho 114, 878 P.2d 813 (Ct. App. 1994).
2 Or.—Weyerhaeuser Co., Inc. v. United Pacific Ins. Co., 82 Or. App. 211, 728 P.2d 543 (1986), on
reconsideration, 83 Or. App. 556, 732 P.2d 921 (1987).
3 R.I.—Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002).
W. Va.—State ex rel. Moore v. Canterbury, 181 W. Va. 389, 382 S.E.2d 583 (1989).
4 Wash.—Allstate Ins. Co. v. Khani, 75 Wash. App. 317, 877 P.2d 724 (Div. 1 1994).
5 W. Va.—State ex rel. Moore v. Canterbury, 181 W. Va. 389, 382 S.E.2d 583 (1989).
6 W. Va.—Jenkins v. Johnson, 181 W. Va. 281, 382 S.E.2d 334 (1989).

W. Va.—Jenkins v. Johnson, 181 W. Va. 281, 382 S.E.2d 334 (1989).

Government Works.

Judgments
§ 439. Time limits in statutes or rules for motion for

opening or vacating judgment—"Catch-all" provision

Motions for relief from a judgment brought under the catch-all provision must be brought
within a reasonable time, but such a motion may not be used to circumvent the time limits
on motions based on more specific grounds.
Motions brought under the provision of a statute or rule providing for relief for any other reason
justifying relief1 are not governed by a definite time limit,2 and thus must be presented within a
reasonable time after the judgment was rendered.3 Determining whether motions under a residual
clause have been made within a reasonable time requires a case by case analysis of all relevant

factors,4 addressed to the trial judge's discretion5 guided by the fact that while respect for the
finality of judgments is an important concern, the residual clause's purpose is to allow courts to do
substantial justice when the circumstances so warrant.6 When determining whether the motion was
filed within a reasonable time, a judge may consider the reasons for the delay, the movant's ability
to learn about the grounds earlier, prejudice to the parties, and the important interest of finality.7
A party may not escape the time limits of the other provisions of a rule on relief from a judgment
by characterizing the motion as a request for relief under the residual clause of the rule.8
Footnotes
1 §§ 423 et seq.
2 S.D.—Anderson v. Somers, 455 N.W.2d 219 (S.D. 1990).

Catch-all provision used when fraud upon the court claimed
Ohio—Coulson v. Coulson, 5 Ohio St. 3d 12, 448 N.E.2d 809 (1983).
Ariz.—Brooks v. Consolidated Freightways Corp. of Delaware, 173 Ariz. 66, 839 P.2d 1111 (Ct. App. Div.
1 1992).
Ind.—Jordan v. State, 549 N.E.2d 382 (Ind. Ct. App. 1990).
Mass.—Owens v. Mukendi, 448 Mass. 66, 858 N.E.2d 734 (2006).
N.M.—Rios v. Danuser Mach. Co., Inc., 110 N.M. 87, 1990-NMCA-031, 792 P.2d 419 (Ct. App. 1990).
Mont.—Ford Motor Credit Co. v. Wellnitz, 2008 MT 314, 346 Mont. 61, 194 P.3d 630 (2008).
S.D.—State ex rel. White v. Brandt, 2008 SD 33, 748 N.W.2d 766 (S.D. 2008).
Utah—Kunzler v. O'Dell, 855 P.2d 270 (Utah Ct. App. 1993).
Ambiguity rather than mere mistake
Relief from a judgment that merely awarded "interest," without specifying the amount of prejudgment
interest, could be sought within a reasonable time rather than within one year, since the motion was intended
to resolve an ambiguity that went beyond mere mistake; in view of the fact that the parties read the ambiguity
differently and needed time to realize the problem, a motion 18 months after the entry of judgment was
timely.
N.J.—Heim v. Wolpaw, 271 N.J. Super. 538, 638 A.2d 1373 (App. Div. 1994).
Movant's incompetency just lifted
Ohio—Newark Orthopedics, Inc. v. Brock, 634 N.E.2d 278 (Ohio Ct. App. 10th Dist. Franklin County 1994).
4 Mont.—Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, 338 Mont. 423, 166 P.3d 451 (2007).
Wis.—State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 511 N.W.2d 868 (1994).
5 Mass.—Owens v. Mukendi, 448 Mass. 66, 858 N.E.2d 734 (2006).
6 Vt.—Riehle v. Tudhope, 171 Vt. 626, 765 A.2d 885 (2000).

Wis.—State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 511 N.W.2d 868 (1994).
7 Mass.—Owens v. Mukendi, 448 Mass. 66, 858 N.E.2d 734 (2006).
Failure of counsel
Mere failure of counsel to be attentive to duties does not constitute an extraordinary circumstance justifying
relief from a judgment or order more than one year after its entry under a statute permitting relief based on
the trial court's discretion in extraordinary circumstances.
Wis.—Brandt v. Brandt, 161 Wis. 2d 784, 468 N.W.2d 769 (Ct. App. 1991).

Failure to take action

Even if the "catch all" provision applied to a motion to set aside a judgment of dismissal, the motion was
not made within a reasonable time, where the plaintiff did not take any action for about three weeks after
her original counsel was permitted to withdraw.
Ala.—Barnett v. Ivey, 559 So. 2d 1082 (Ala. 1990).
Reasonable time after survey approved in boundary case
Mont.—Skogen v. Murray, 2007 MT 104, 337 Mont. 139, 157 P.3d 1143 (2007).
8 Ala.—Cassioppi v. Damico, 536 So. 2d 938 (Ala. 1988).
Alaska—Wright v. Wright, 22 P.3d 875 (Alaska 2001).
Colo.—In re Marriage of Seely, 689 P.2d 1154 (Colo. App. 1984).
Kan.—In re Marriage of Leedy, 279 Kan. 311, 109 P.3d 1130 (2005).
Minn.—Zetah v. Isaacs, 428 N.W.2d 96 (Minn. Ct. App. 1988).
As to the catch-all clause being mutually exclusive of the specified grounds, see § 424.
Excusable neglect
Ala.—Hill v. Townsend, 491 So. 2d 237 (Ala. 1986).
Ky.—Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007)
Mutual mistake
Ind.—Dusenberry v. Dusenberry, 625 N.E.2d 458 (Ind. Ct. App. 1993).
Fraud or misconduct
Ala.—Clark v. Mobile County Health Dept., 628 So. 2d 787 (Ala. Civ. App. 1993).
Vt.—Perrott v. Johnston, 151 Vt. 464, 562 A.2d 459 (1989).
Newly discovered evidence

Government Works.

§ 440. Motions for other relief deemed to be timely as..., 49 C.J.S. Judgments §...
Judgments
§ 440. Motions for other relief deemed to be timely

as motions for opening or vacating judgment

Although a motion for relief from a judgment may not be used to circumvent a time limit
for moving for a new trial, on occasion, motions for a new trial or clarification have been
deemed to be timely as motions for relief from a judgment.
Where the grounds for relief from judgment are or should have been known within the shorter time
limit for a motion for a new trial, it is inappropriate to try to circumvent that time limit by resorting
to the longer time limit applicable to a motion for relief from a judgment.1 On the other hand,
motions for a new trial2 or to clarify a judgment3 have been deemed to be motions for relief from

§ 440. Motions for other relief deemed to be timely as..., 49 C.J.S. Judgments §...
a judgment, and timely under the rule applying to those motions, under certain circumstances.If
the motion is filed outside the time limit for a motion for a new trial, it may only be addressed as
a motion for relief from the judgment.4
Footnotes
1 N.M.—Dozier v. Dozier, 118 N.M. 69, 1994-NMCA-080, 878 P.2d 1018 (Ct. App. 1994) (overruled on
other grounds by, Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596 (2004)).
2 Okla.—Neumann v. Arrowsmith, 2007 OK 10, 164 P.3d 116 (Okla. 2007).
Improper influence on jury
If a party learns of improper influence on the jury several months after judgment was entered, an application
under the rule on relief from judgment is appropriate despite the expiration of the 10-day time limit under
a rule of civil procedure for serving ordinary motions for a new trial.
N.M.—Archuleta v. New Mexico State Police, 108 N.M. 543, 1989-NMCA-012, 775 P.2d 745 (Ct. App.
1989).
3 Miss.—City of Jackson v. Jackson Oaks Ltd. Partnership, 792 So. 2d 983 (Miss. 2001).
4 W. Va.—Law v. Monongahela Power Co., 210 W. Va. 549, 558 S.E.2d 349 (2001).

Government Works.

§ 441. Commencement, tolling, and stopping running of..., 49 C.J.S. Judgments §...
Judgments
§ 441. Commencement, tolling, and stopping running of

period for filing motion for opening or vacating judgment

The time for filing a motion for relief from a judgment generally runs from the rendition
or entry of the judgment, the determination of posttrial motions, or notice of the judgment,
may be tolled under certain circumstances, and is satisfied when the motion is served.
The period specified in a statute or rule of civil procedure in which a motion for relief from a
judgment may be made usually commences on the rendition or entry of the judgment.1 A time limit
or reasonable period to bring the motion may also commence after the denial of posttrial motions,2
or notice or knowledge of the judgment.3 The requirement of a rule of civil procedure that a motion

for relief from a judgment must be made within a reasonable period as measured from the date of
notice of the judgment assumes that the clerk has distributed notice of the judgment to the adverse
party; thus, where the clerk has not done so, the time limit does not begin to run until the adverse
party obtains actual knowledge of the entry of the judgment.4
There is some authority that the time of the pendency of an appeal is not considered as any portion
of the statutory period for bringing a motion for relief from a judgment.5 However, it has also been
held that the fact that a postjudgment motion or an appeal may be pending does not serve to toll the
limitation period of a statute or rule of civil procedure applicable to petitions6 or motions7 seeking
relief from a judgment, unless the movant moves in the appellate court, within the time limit, to
have the case remanded to the trial court to hear the motion for relief.8
The time during which a person seeking relief from a judgment is under legal disability or duress
may toll a statute of limitations governing relief from judgments.9
Where a petition to vacate is not an original action,10 the rules of civil procedure relating to
commencement of actions and tolling statutes of limitations are not applicable.11
Where a statute limits the time for applying for relief from a judgment, the moving party must not
only file the motion or petition within the prescribed time, but must also issue or serve such process
or notice as may be necessary to bring the opponent into court within the specified time.12 There is
authority that serving the motion within the time period is sufficient, even if it is not filed with the
court until much later.13 The sufficiency of the motion14 does not affect whether it is timely filed.15
Footnotes
1 Ill.—Rome Soap Mfg. Co. v. John T. La Forge & Sons, 322 Ill. App. 281, 54 N.E.2d 252 (1st Dist. 1944).
Minn.—Chapman v. Special School Dist. No. 1, 454 N.W.2d 921 (Minn. 1990).
Mont.—In re Marriage of Bell, 2000 MT 88, 299 Mont. 219, 998 P.2d 1163 (2000).
W. Va.—Corathers v. Facemire, 185 W. Va. 78, 404 S.E.2d 769 (1991).
Filing of written order, not oral pronouncement
Ill.—Federal Kemper Life Assur. Co. v. Eichwedel, 266 Ill. App. 3d 88, 203 Ill. Dec. 207, 639 N.E.2d 246
(1st Dist. 1994).
2 Fla.—Gordon v. State, 608 So. 2d 800, 16 A.L.R.5th 894 (Fla. 1992).
Miss.—Kirk v. Pope, 973 So. 2d 981 (Miss. 2007).
3 Minn.—Holmes v. Conter, 209 Minn. 144, 295 N.W. 649 (1941).
Or.—Anderson v. Guenther, 144 Or. 446, 25 P.2d 146 (1933).
Question of fact
Whether a party has been given notice of the dismissal of the action, so as to trigger the time for moving
to open the judgment, is a question of fact.

Conn.—Batory v. Bajor, 22 Conn. App. 4, 575 A.2d 1042 (1990).

4 Alaska—Princiotta v. Municipality of Anchorage, 785 P.2d 559 (Alaska 1990).
5 Wash.—Pacific Tel. & Tel. Co. v. Henneford, 199 Wash. 462, 92 P.2d 214 (1939).
Tolled by conditional notice of appeal
Ill.—First Union Nat. Bank of Florida v. Yost, 622 So. 2d 111 (Fla. 1st DCA 1993).
6 Ill.—Sidwell v. Sidwell, 127 Ill. App. 3d 169, 82 Ill. Dec. 138, 468 N.E.2d 200 (4th Dist. 1984).
7 Alaska—Vezey v. Green, 171 P.3d 1125 (Alaska 2007).

Fla.—Legler v. Kwitney, Kroop & Scheinberg, P.A., 520 So. 2d 95 (Fla. 4th DCA 1988).
8 Colo.—Southeastern Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167 (Colo.
1993).
9 Ill.—King v. King, 130 Ill. App. 3d 642, 85 Ill. Dec. 874, 474 N.E.2d 834 (5th Dist. 1985).
Disability separate from imprisonment
Neb.—Cole v. Kilgore, 241 Neb. 620, 489 N.W.2d 843 (1992).
10 § 433.
11 Iowa—In re Marriage of Fairall, 403 N.W.2d 785 (Iowa 1987).
12 Cal.—Brownell v. Superior Court of Yolo County, 157 Cal. 703, 109 P. 91 (1910).
Iowa—In re Marriage of Fairall, 403 N.W.2d 785 (Iowa 1987).
13 S.D.—Williams Services v. Sherman, 492 N.W.2d 122 (S.D. 1992).
14 § 445.
15 Utah—Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 (Utah 2006).

Government Works.

§ 442. Fraudulent concealment as tolling period for..., 49 C.J.S. Judgments §...
Judgments
§ 442. Fraudulent concealment as tolling period for

bringing motion for opening or vacating judgment

There is disagreement whether fraudulent concealment tolls the period for bringing a
motion for relief from a judgment, but, in any event, the movant must exercise diligence in
discovering the fraud.
It has been held that fraudulent concealment of the grounds for relief may toll the limitation period,1
but there is also authority that fraudulent concealment does not toll that time limit, based on a
strong public policy in limiting the time and basis on which a judgment may be vacated pursuant
to a motion in the original action.2

Fraudulent concealment, where recognized, consists of affirmative acts or misrepresentations

intended to exclude suspicion or prevent injury; the nondisclosure of a material fact is in essence
a misrepresentation.3 Alleged concealment of evidence is not sufficient, where the discrepancies
in witnesses' testimony about the existence of evidence were not great.4
In a statutory proceeding to vacate a judgment on the ground of fraud, the petitioner must show
that petitioner exercised diligence in the original action to try to discover the fraud5 and acted
without delay in asserting rights after discovering it.6 While some rules of civil procedure do not
set a time limit if fraud on the court is alleged,7 an old judgment will not be vacated on that basis,
absent a showing that the movants, by using reasonable diligence, could not have discovered the
alleged misrepresentation sooner.8
For the doctrine of equitable estoppel to toll the time limit on filing a motion for relief from a
judgment based on mistake, inadvertence, excusable neglect, or newly discovered evidence, there
must be a misrepresentation or concealment of material fact by the party to be estopped, and the
party seeking to assert the doctrine must show reasonable reliance on the misrepresentations of
another, and must have acted on those misrepresentations in such a manner as to change position
for the worse.9
Footnotes
1 Ill.—Ptaszek v. Michalik, 238 Ill. App. 3d 72, 179 Ill. Dec. 283, 606 N.E.2d 115 (1st Dist. 1992).
2 Minn.—Carlson v. Carlson, 371 N.W.2d 591 (Minn. Ct. App. 1985).
3 Ill.—In re Marriage of Frazier, 203 Ill. App. 3d 847, 148 Ill. Dec. 854, 561 N.E.2d 160 (5th Dist. 1990).
4 Ill.—Johnson v. Valspar Corp., 251 Ill. App. 3d 564, 190 Ill. Dec. 546, 621 N.E.2d 999 (2d Dist. 1993).
5 Neb.—Nielsen v. Nielsen, 275 Neb. 810, 749 N.W.2d 485 (2008).

Okla.—Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185 (Okla. 1999).
6 Colo.—Southeastern Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167 (Colo.
1993).
7 Ala.—Frasemer v. Frasemer, 578 So. 2d 1346 (Ala. Civ. App. 1991).
Fla.—Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983).
Mass.—Sahin v. Sahin, 435 Mass. 396, 758 N.E.2d 132 (2001).
Nev.—Murphy v. Murphy, 103 Nev. 185, 734 P.2d 738 (1987).
W. Va.—Withrow v. Williams, 216 W. Va. 385, 607 S.E.2d 491 (2004).
8 Ala.—Adams v. Farlow, 516 So. 2d 528 (Ala. 1987).
9 Minn.—Gould v. Johnson, 379 N.W.2d 643 (Minn. Ct. App. 1986).

As to equitable estoppel, generally, see C.J.S., Estoppel and Waiver §§ 74 to 84.


Government Works.

§ 443. Delay amounting to laches in application for..., 49 C.J.S. Judgments §...
Judgments
§ 443. Delay amounting to laches in application for opening or vacating judgment

An application for the opening or vacating of a judgment must be made with reasonable
promptness, and delay amounting to laches will justify refusing the application.
A party who has knowledge of the judgment against the party is required to exercise reasonable
diligence and promptness in seeking relief from it, and unexcused delay in making the application,
amounting to laches, justifies refusing the relief asked,1 especially where, under the circumstances
of the particular case, vacating the judgment would cause undue hardship to the opposing party,2

or where rights of innocent third persons have intervened.3 Laches may act as a legitimate waiver
of the right to challenge a judgment.4
Even if the application is made within the statutory time limit, it will be regarded with disfavor,
and may be refused, if there is an unexplained delay in presenting it, or such unreasonable delay
as amounts to laches.5 However, some cases hold that a party has the whole statutory period in
which to move, and that laches may not be imputed within that time,6 and that delay within the
term is immaterial.7
However, great the lapse of time, laches is not imputable to a party who did not have knowledge
of the judgment; the party is required to be diligent in seeking relief only after receiving notice
of it,8 although it has also been held that a person asking that a judgment be vacated must show
diligence to learn the facts.9
Laches is not mere lapse of time, but is an unreasonable delay under the circumstances, generally
involving injustice or injury to the opposite party.10 Accordingly, it is impossible to state a precise
rule regarding what lapse of time will constitute reasonable diligence, or what amounts to laches
in moving for relief from a judgment; what is a reasonable time is a matter within the court's sound
legal discretion,11 and depends on the facts and circumstances of each case.12
A delay will not estop one from attacking a judgment that has been discharged in fact by accord
and satisfaction.13
Void judgments.
Laches does not run against seeking relief from a void judgment,14 at least where no injury is
shown,15 and delay does not estop one from attacking a void or invalid judgment.16 A void
judgment may be attacked without any showing of diligence.17 However, there may be unusual
or special circumstances when laches may be asserted to bar an action to vacate a void judgment,
such as where parties have innocently relied on the record of the judgment.18 When a party asserts
the defense of laches in an action to set aside a void judgment, the mere passage of time does not
constitute such unusual circumstances.19 Laches may attach to a motion to vacate a void judgment
where during an unnecessary delay, a third person who innocently relied on the judgment changed
position and suffered some injury.20

Depending on the form of the proceeding.
A proceeding to strike a judgment is not a proceeding in equity, and, therefore, is not subject to the
defense of laches.21 However, the doctrine of laches applies to motions for relief from a judgment22
where the relief sought is equitable in nature.23 A petition to open a judgment, being equitable
in nature, is subject to the principle of laches,24 and the petitioner must establish that petitioner
exercised due diligence in filing the petition for relief.25
Footnotes
1 Ark.—O'Neal v. B.F. Goodrich Rubber Co., 204 Ark. 371, 162 S.W.2d 52 (1942).
Cal.—Cowan v. Cowan, 72 Cal. App. 2d 868, 166 P.2d 21 (2d Dist. 1946).
Ky.—Richardson v. Louisville & N.R. Co., 291 Ky. 357, 164 S.W.2d 602 (1942).
N.Y.—West 158th Street Garage Corp. v. State, 256 A.D. 401, 10 N.Y.S.2d 990 (3d Dep't 1939).
Or.—Cook v. Cook, 167 Or. 474, 118 P.2d 1070 (1941).
As to laches as a bar to equitable relief from a judgment, see § 668.
2 Miss.—Carraway v. State, 167 Miss. 390, 148 So. 340 (1933).
3 Ind.—Harvey v. Rodger, 84 Ind. App. 409, 143 N.E. 8 (1924).
4 Ind.—Higgason v. State, 631 N.E.2d 539 (Ind. Ct. App. 1994).
5 Minn.—Holmes v. Conter, 209 Minn. 144, 295 N.W. 649 (1941).
6 Ill.—Central Cleaners and Dyers v. Schild, 284 Ill. App. 267, 1 N.E.2d 90 (1st Dist. 1936).
7 Tex.—Mitchell v. Gregory, 283 S.W. 211 (Tex. Civ. App. El Paso 1926).
As to rules providing that the motion must be made within a reasonable time and not more than a specified
period, see § 437.
8 Ill.—Reisman v. Central Mfg. Dist. Bank, 296 Ill. App. 61, 15 N.E.2d 903 (1st Dist. 1938).
Mass.—Borst v. Young, 302 Mass. 124, 18 N.E.2d 544 (1939).
N.C.—S.J. Bartholomew & Co. v. Parrish, 190 N.C. 151, 129 S.E. 190 (1925).
Pa.—Bianca v. Kaplan, 105 Pa. Super. 98, 160 A. 143 (1932).
9 Ky.—Ballman v. Ballman, 252 Ky. 332, 67 S.W.2d 39 (1934).
As to the application of this rule when fraudulent concealment is claimed, see § 442.
10 Ill.—Reisman v. Central Mfg. Dist. Bank, 296 Ill. App. 61, 15 N.E.2d 903 (1st Dist. 1938).
Pa.—Eastman Kodak Co. v. Osenider, 127 Pa. Super. 332, 193 A. 284 (1937).
11 Cal.—McCarthy v. McCarthy, 23 Cal. App. 2d 151, 72 P.2d 255 (1st Dist. 1937).
Pa.—Citizens' Bank v. Gwinner, 112 Pa. Super. 12, 170 A. 471 (1934).
12 Pa.—Eastman Kodak Co. v. Osenider, 127 Pa. Super. 332, 193 A. 284 (1937).
13 Pa.—Peoples Nat. Bank of Ellwood City v. Weingartner, 153 Pa. Super. 40, 33 A.2d 469 (1943).
14 Ill.—Thayer v. Village of Downers Grove, 369 Ill. 334, 16 N.E.2d 717 (1938) (disapproved of on other
grounds by, James v. Frantz, 21 Ill. 2d 377, 172 N.E.2d 795 (1961)).
Kan.—Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 847 P.2d 1341 (1993).
N.J.—Collyer v. McDonald, 123 N.J.L. 547, 10 A.2d 284 (N.J. Sup. Ct. 1940).
N.C.—Jenkins v. Richmond County, 99 N.C. App. 717, 394 S.E.2d 258 (1990).
Pa.—M & P Management, LP v. Williams, 2006 PA Super 112, 900 A.2d 871 (2006), rev'd and remanded
on other grounds, 594 Pa. 489, 937 A.2d 398 (2007).
Wash.—Allstate Ins. Co. v. Khani, 75 Wash. App. 317, 877 P.2d 724 (Div. 1 1994).

15 Del.—Hendrix v. Kelley, 34 Del. 120, 143 A. 460 (Super. Ct. 1928).
16 Ill.—Thayer v. Village of Downers Grove, 369 Ill. 334, 16 N.E.2d 717 (1938) (disapproved of on other
grounds by, James v. Frantz, 21 Ill. 2d 377, 172 N.E.2d 795 (1961)).
Pa.—Peoples Nat. Bank of Ellwood City v. Weingartner, 153 Pa. Super. 40, 33 A.2d 469 (1943).
17 Ill.—Dec and Aque v. Manning, 248 Ill. App. 3d 341, 187 Ill. Dec. 776, 618 N.E.2d 367 (1st Dist. 1993).
18 Kan.—Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 847 P.2d 1341 (1993).
19 Kan.—Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 847 P.2d 1341 (1993).
20 N.C.—Jenkins v. Richmond County, 99 N.C. App. 717, 394 S.E.2d 258 (1990).
21 Pa.—Barron v. City of Philadelphia, 160 Pa. Commw. 392, 635 A.2d 219 (1993).
22 Ala.—Ex parte W.J., 622 So. 2d 358 (Ala. 1993).

Ind.—Jordan v. State, 549 N.E.2d 382 (Ind. Ct. App. 1990).
Ohio—Haendiges v. Widenmeyer Elec. Const. Co., 9 Ohio App. 3d 37, 458 N.E.2d 437 (9th Dist. Medina
County 1983).
23 Fla.—Pollock v. T & M Investments, Inc., 420 So. 2d 99 (Fla. 3d DCA 1982).
As if motion were action in equity
Ga.—Herringdine v. Nalley Equipment Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).
24 Pa.—First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 324 Pa. Super. 352, 471 A.2d
875 (1984), decision aff'd, 506 Pa. 439, 485 A.2d 1086 (1984).
25 Ill.—Cohen v. Wood Bros. Steel Stamping Co., 227 Ill. App. 3d 354, 169 Ill. Dec. 572, 592 N.E.2d 59 (1st
Dist. 1991).

Government Works.

§ 444. Reasonable time requirement for setting aside..., 49 C.J.S. Judgments §...
Judgments
§ 444. Reasonable time requirement for setting aside irregular judgments

Apart from statutory provisions, an application to set aside a judgment for mere technical
irregularities must be made at the first opportunity or within a reasonable time.
Where a party seeks to set aside a judgment for a mere technical irregularity, and not a matter of
substance, the application, being without merits, must be made at the first opportunity, or within
a reasonable time, or the irregularity will be deemed waived.1 However, the application is too late
if it is not made within an applicable statutory period.2

§ 444. Reasonable time requirement for setting aside..., 49 C.J.S. Judgments §...
A void judgment is not an irregularity within the meaning of a statute providing that a judgment for
irregularity may be set aside within a definite time, and such a statute does not preclude a proper
proceeding to declare a judgment void after the passage of that time.3
Footnotes
1 Pa.—Eastman Kodak Co. v. Osenider, 127 Pa. Super. 332, 193 A. 284 (1937).
May be made within reasonable period
N.C.—Cincinnati Coffin Co. v. Yopp, 206 N.C. 716, 175 S.E. 164 (1934).
2 Kan.—Harder v. Johnson, 147 Kan. 440, 76 P.2d 763 (1938).
Okla.—Weimer v. Augustana Pension and Aid Fund, 1937 OK 241, 179 Okla. 572, 67 P.2d 436 (1937).
Wyo.—Boulter v. Cook, 32 Wyo. 461, 234 P. 1101 (1925).
3 Mo.—Roberts v. Johnson, 836 S.W.2d 522 (Mo. Ct. App. S.D. 1992).
As to when a void judgment may be vacated, generally, see § 435.

Government Works.

§ 445. General requisites of application for opening or..., 49 C.J.S. Judgments §...
Judgments
Francis C. Amendola, J.D.; John Bourdeau, J.D.; James Buchwalter, J.D.; Paul M. Coltoff, J.D; Cecily Fuhr, J.D.; Lonnie E. Griffith, Jr.,
J.D.; Glenda K. Harnad, J.D.; Janice Holben, J.D.; John Kimpflen, J.D.; William Lindsley, J.D.; Kristina E. Music Biro, J.D., of the staff
of the National Legal Research Group, Inc.; Thomas Muskus, J.D.; Sally J.T. Necheles, J.D., LL.M.; Jeffrey J. Shampo, J.D.; Kimberly C.
c. Application, Response, and Supporting Affidavits
§ 445. General requisites of application for opening or vacating judgment

West's Key Number Digest, Judgment 384
An application for relief from a judgment must conform to the ordinary requirements for a motion or petition.
Depending on the form of the proceeding,1 an application for relief from a judgment must conform to the ordinary requirements
for a motion, petition, or complaint.2 If an applicant has erred with regard to the proper remedy, the court may treat the application
as though it is in the proper form of a motion for relief from a judgment, if it contains the matter and allegations required in
the proper proceeding.3 Where the application is under a statute, substantial compliance with the provisions of the statute is
required.4 Harmless errors may be disregarded5 and amendments may be allowed.6 If the motion is insufficient, a court has the
discretion either to deny it or to allow the party to supplement it.7
The application must describe the judgment or portion of it sought to be opened or vacated,8 show compliance with all
preliminary requisites or conditions precedent,9 request specific relief,10 and show a meritorious cause of action or defense,
available to the applicant if the judgment is vacated.11 It is sufficient if the application shows a case for relief under the statute
or rule, or the inherent power of the court.12
Ordinarily the application must be in writing,13 unless the court acts on its own motion without any form of application.14

§ 445. General requisites of application for opening or..., 49 C.J.S. Judgments §...
Footnotes
1 § 433.
2 Cal.—Liebman v. Choynski, 37 Cal. App. 2d 565, 99 P.2d 1119 (1st Dist. 1940).
Summary process not available
3 Ark.—Merriott v. Kilgore, 200 Ark. 394, 139 S.W.2d 387 (1940).
Cal.—Miller v. Lee, 52 Cal. App. 2d 10, 125 P.2d 627 (2d Dist. 1942).
Colo.—Salvo v. De Simone, 727 P.2d 879 (Colo. App. 1986).
Ga.—Housing Authority of Atlanta v. Parks, 189 Ga. App. 97, 374 S.E.2d 842 (1988).
Ill.—Williamsburg Village Owners' Ass'n, Inc. v. Lauder Associates, 181 Ill. App. 3d 931, 130 Ill. Dec. 528,
537 N.E.2d 857 (1st Dist. 1989).
Mo.—Harrison v. Slaton, 49 S.W.2d 31 (Mo. 1932).
Neb.—Central Nebraska Public Power and Irr. Dist. v. Jeffrey Lake Development, Inc., 267 Neb. 997, 679
N.W.2d 235 (2004).
N.J.—Meyner and Landis v. Turtletaub, 248 N.J. Super. 690, 591 A.2d 1043 (Law Div. 1991).
Ohio—CompuServe, Inc. v. Trionfo, 91 Ohio App. 3d 157, 631 N.E.2d 1120 (10th Dist. Franklin County
1993).
Okla.—Petty v. Roberts, 1939 OK 560, 186 Okla. 269, 98 P.2d 602 (1939).
As to the effect of doing so on the time limit for presenting the motion, see § 440.
Motion to correct errors
Ind.—Lee v. Hawthorne, 516 N.E.2d 1088 (Ind. Ct. App. 1987).
Request for clarification
Utah—Kunzler v. O'Dell, 855 P.2d 270 (Utah Ct. App. 1993).
4 Ark.—Moon v. Moseley, 205 Ark. 134, 167 S.W.2d 871 (1943).
Ill.—Freedman v. Hunt, Hartford Acc. & Indem. Co., Intervenor, 301 Ill. App. 604, 22 N.E.2d 864 (1st
Dist. 1939).
Okla.—Featherstone v. Southwestern Lumber Co., 1926 OK 38, 116 Okla. 86, 243 P. 240 (1926).
5 Mass.—Magee v. Flynn, 245 Mass. 128, 139 N.E. 842 (1923).
6 Ga.—Wilby v. McRae, 56 Ga. App. 140, 191 S.E. 662 (1937).
Ill.—Smith v. Cole, 256 Ill. App. 3d 806, 197 Ill. Dec. 962, 632 N.E.2d 31 (1st Dist. 1993).
8 Okla.—Richards v. Baker, 1940 OK 90, 186 Okla. 533, 99 P.2d 118 (1940).
10 Utah—Gillett v. Price, 2006 UT 24, 135 P.3d 861 (Utah 2006).
11 § 447.
12 Ill.—Goncaves v. Saab, 184 Ill. App. 3d 952, 130 Ill. Dec. 931, 538 N.E.2d 142 (1st Dist. 1989).
Wash.—Chaney v. Chaney, 56 Wash. 145, 105 P. 229 (1909).
13 Ill.—Wilkins v. Dellenback, 149 Ill. App. 3d 549, 102 Ill. Dec. 799, 500 N.E.2d 692 (2d Dist. 1986).
N.C.—Union Nat. Bank v. Hagaman, 208 N.C. 191, 179 S.E. 759 (1935).
14 § 434.
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

Works.

§ 446. Allegation of facts and grounds for opening or..., 49 C.J.S. Judgments §...
Judgments
§ 446. Allegation of facts and grounds for opening or vacating judgment

An application for relief from a judgment must state facts showing an adequate ground for the relief requested.
An application for relief from a judgment must state facts constituting a sufficient ground for vacating the judgment,1 although
it is sufficient if those facts appear from affidavits contained in the motion papers instead of the petition or motion itself.2 Facts,
as distinguished from conclusions of law, must be stated.3 It is not enough to allege "mistake," "surprise," "fraud," "unavoidable
casualty or misfortune," or the like, in general terms; the facts that resulted in the judgment or prevented the party from defending
the suit must be explicitly stated.4
Extraordinary reasons required by a rule allowing relief from a judgment must be clearly stated in the written motion or petition.5
A litigant's failure to specify the exact paragraph of a rule specifying the ground for relief from a judgment on which the movant
relies will not defeat a request for relief from the judgment, if the movant can make an adequate showing that there are sufficient
grounds to support the motion.6

§ 446. Allegation of facts and grounds for opening or..., 49 C.J.S. Judgments §...
Facts showing freedom from fault or due diligence.
The moving papers must show, by specific averments, that the applicant has not been at fault, or has exercised due diligence.7
If a prima facie case of negligence appears, there must be a showing of facts showing excusable neglect.8 However, a statutory
requirement of due diligence may not be rigidly enforced when fraud or unconscionable behavior is shown.9
Footnotes
1 Ala.—Heard v. State, 607 So. 2d 260 (Ala. Civ. App. 1992).
Idaho—Kukuruza v. Kukuruza, 120 Idaho 630, 818 P.2d 334 (Ct. App. 1991).
Ill.—La Rabida Children's Hosp. and Research Center v. Harrison, 263 Ill. App. 3d 790, 200 Ill. Dec. 236,
635 N.E.2d 575 (1st Dist. 1994).
Ind.—Vail v. Department of Financial Institutions of Indiana, 106 Ind. App. 39, 17 N.E.2d 854 (1938).
Ky.—Morris v. Morris, 299 Ky. 235, 185 S.W.2d 244 (1945).
La.—Adkins' Heirs v. Crawford, Jenkins & Booth, 209 La. 46, 24 So. 2d 246 (1945).
Ohio—Boster v. C & M Serv., Inc., 93 Ohio App. 3d 523, 639 N.E.2d 136 (10th Dist. Franklin County 1994).
Okla.—Moran v. City Nat. Bank of Lawton, 1938 OK 418, 183 Okla. 308, 82 P.2d 682 (1938).
Tenn.—Duncan v. Duncan, 789 S.W.2d 557 (Tenn. Ct. App. 1990).
Grounds for relief from a judgment are discussed in §§ 397 et seq.
Documentary evidence not required
A party moving for relief from a judgment need not submit documentary evidence to support its contention
that it can establish facts necessary for relief, but the movant must allege the operative facts with enough
specificity to allow the court to decide whether the test has been met.
County 1993).
2 Iowa—Comes v. Comes, 190 Iowa 547, 178 N.W. 403 (1920).
Affidavits supporting the application are discussed in § 450.
3 Fla.—Shienvold v. Habie, 627 So. 2d 1203 (Fla. 4th DCA 1993).
La.—Lieber v. Ownership of Real Property Located In Caddo Parish, 501 So. 2d 957 (La. Ct. App. 2d Cir.
1987), writ denied, 504 So. 2d 882 (La. 1987).
Mo.—Bess v. Bothwell, 163 S.W.2d 125 (Mo. Ct. App. 1942).
N.Y.—Kadan v. Kavleski, 182 A.D.2d 860, 581 N.Y.S.2d 919 (3d Dep't 1992).
Tex.—Wadell Connally Hardware Co. v. Brooks, 275 S.W. 168 (Tex. Civ. App. Beaumont 1925).
4 Fla.—Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994).
Fla.—Federal Home Loan Mortg. Corp. v. De Souza, 85 So. 3d 1125 (Fla. Dist. Ct. App. 2012).
Ill.—Storcz v. O'Donnell, 256 Ill. App. 3d 1064, 195 Ill. Dec. 213, 628 N.E.2d 677 (1st Dist. 1993).
5 Ky.—Berry v. Cabinet for Families & Children ex rel. Howard, 998 S.W.2d 464 (Ky. 1999).
6 Ill.—In re Marriage of Travlos, 218 Ill. App. 3d 1030, 161 Ill. Dec. 621, 578 N.E.2d 1267 (1st Dist. 1991).
Ind.—Greengard v. Indiana Lawrence Bank, 556 N.E.2d 1373 (Ind. Ct. App. 1990).
7 Ala.—Ex parte New Home Sewing Mach. Co., 238 Ala. 159, 189 So. 874 (1939).
Ill.—Ligon v. Williams, 264 Ill. App. 3d 701, 202 Ill. Dec. 94, 637 N.E.2d 633 (1st Dist. 1994).
Neb.—Emry v. American Honda Motor Co., Inc., 214 Neb. 435, 334 N.W.2d 786 (1983).
8 Ill.—Bradshaw v. Pellican, 152 Ill. App. 3d 253, 105 Ill. Dec. 342, 504 N.E.2d 211 (2d Dist. 1987).
9 Ill.—In re Marriage of Lindjord, 234 Ill. App. 3d 319, 175 Ill. Dec. 500, 600 N.E.2d 431 (2d Dist. 1992).

Works.

§ 447. Allegation of meritorious claim or defense in..., 49 C.J.S. Judgments §...
Judgments
§ 447. Allegation of meritorious claim or defense

in application for opening or vacating judgment

West's Key Number Digest, Judgment 379(.5), 379(1)
Although there are some exceptions to the rule, an application for relief from a judgment generally must be supported
by a showing of a meritorious claim or defense.
An applicant for relief from a judgment must generally allege and show that the applicant has a meritorious defense,1 or, if
the application is made by a plaintiff, that the plaintiff has a meritorious cause of action.2 Statutes regulating the proceedings
sometimes expressly require such a showing.3
It must appear that a retrial would result in a different judgment from the one sought to be vacated.4 The reason for this rule is that
if the defendant does not have a valid defense, or a plaintiff does not have a cause of action, so that a second trial must result in an
identical judgment, then an actual injustice has not been done, and it would be useless to disturb the judgment already entered.5
Exceptions to rule.

Exceptions to the rule that a meritorious claim or defense must be shown have been made in a variety of cases.6 A judgment
may be opened or vacated without the showing of a meritorious action or defense where the judgment is void,7 such as for lack
of jurisdiction.8 It has likewise been held that a meritorious cause of action or defense need not be shown where the judgment
was entered without authority, by mistake, or improvidently,9 or where the ground of objection to the judgment is clearly well
founded.10
Footnotes
1 Utah—Metropolitan Water Dist. of Salt Lake and Sandy v. Sorf, 2013 UT 27, 304 P.3d 824 (Utah 2013).
As to the meritorious defense requirement on applications to open confessed judgments, see § 488, and
default judgments, see §§ 567 et seq., and on a request for equitable relief, see § 626.
2 Cal.—Doyle v. Rice Ranch Oil Co., 28 Cal. App. 2d 18, 81 P.2d 980 (2d Dist. 1938).
Conn.—Jaconski v. AMF, Inc., 208 Conn. 230, 543 A.2d 728 (1988).
Ill.—Ligon v. Williams, 264 Ill. App. 3d 701, 202 Ill. Dec. 94, 637 N.E.2d 633 (1st Dist. 1994).
Ind.—Greengard v. Indiana Lawrence Bank, 556 N.E.2d 1373 (Ind. Ct. App. 1990).
N.C.—Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801 (1940).
County 1993).
Okla.—Methvin v. Mutual Sav. & Loan Ass'n, 1937 OK 229, 180 Okla. 80, 67 P.2d 792 (1937).
3 Ark.—Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S.W.2d 857 (1944).
Wyo.—Bales v. Brome, 56 Wyo. 111, 105 P.2d 568 (1940).
4 Ind.—Chelovich v. Ruff & Silvian Agency, 551 N.E.2d 890 (Ind. Ct. App. 1990).
N.J.—Somers v. Holmes, 114 N.J.L. 497, 177 A. 434 (N.J. Sup. Ct. 1935).
As to the sufficiency of this showing, see § 449.
5 N.C.—Baker v. Baker, 115 N.C. App. 337, 444 S.E.2d 478 (1994).
Wyo.—Bales v. Brome, 56 Wyo. 111, 105 P.2d 568 (1940).
6 N.C.—Campbell v. Campbell, 179 N.C. 413, 102 S.E. 737 (1920).
7 Ala.—Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990).
Ark.—Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993).
Ill.—Dec and Aque v. Manning, 248 Ill. App. 3d 341, 187 Ill. Dec. 776, 618 N.E.2d 367 (1st Dist. 1993).
Kan.—Bazine State Bank v. Pawnee Production Service, Inc., 245 Kan. 490, 781 P.2d 1077 (1989).
Md.—C. I. T. Corporation v. Powell, 166 Md. 208, 170 A. 740 (1934).
Ohio—Snyder v. Clough, 71 Ohio App. 440, 26 Ohio Op. 367, 50 N.E.2d 384 (5th Dist. Stark County 1942).
Okla.—Abernathy v. Bonaparte, 1933 OK 598, 166 Okla. 192, 26 P.2d 947 (1933).
Wash.—John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 83 P.2d 221, 118 A.L.R. 1484 (1938).
Wyo.—Elstermeyer v. City of Cheyenne, 57 Wyo. 421, 120 P.2d 599 (1942).
Void, not voidable
Ark.—Bunker v. Bunker, 17 Ark. App. 7, 701 S.W.2d 709 (1986).
8 Ohio—Beachler v. Ford, 77 Ohio App. 41, 32 Ohio Op. 317, 42 Ohio L. Abs. 609, 60 N.E.2d 330 (2d Dist.
Darke County 1945).
Okla.—Matter of Estate of Pope, 1990 OK 125, 808 P.2d 640 (Okla. 1990).
Wis.—Chippewa Val. Securities Co. v. Herbst, 227 Wis. 422, 278 N.W. 872 (1938).
9 Ariz.—Gila Valley Elec., Gas & Water Co. v. Arizona Trust & Sav. Bank, 25 Ariz. 177, 215 P. 159 (1923).
10 N.D.—Naderhoff v. Geo. Benz & Sons, 25 N.D. 165, 141 N.W. 501 (1913).

Works.

Judgments
§ 448. Allegation of meritorious claim or defense in application

for opening or vacating judgment—Sufficiency of allegations

The facts constituting the cause of action or defense must be stated in an application for relief from a judgment, rather
than that conclusion.
Where it is necessary to show that the movant has a meritorious claim or defense,1 it is not sufficient to allege that conclusion
in general terms;2 the nature of the defense, or cause of action, must be shown.3 The facts constituting the proposed defense,
or claimed cause of action, must be stated in detail, so that the court may judge whether it is meritorious and sufficient.4 The
petitioner need not repeat the allegations contained in the original complaint.5
A statement of the facts is sufficient; it is not necessary to allege the legal conclusion that the applicant has a meritorious defense
or cause of action.6
The requirement of a meritorious defense is met by filing an answer that contains affirmative defenses.7

Footnotes
1 § 447.
2 Ala.—Fletcher v. First Nat. Bank of Opelika, 244 Ala. 98, 11 So. 2d 854 (1943).
Ky.—Horn v. Green, 296 Ky. 714, 178 S.W.2d 430 (1944).
Miss.—Cocke v. Wilson, 161 Miss. 1, 134 So. 686 (1931).
Mo.—Jeffrey v. Kelly, 146 S.W.2d 850 (Mo. Ct. App. 1940).
Conclusory allegations insufficient
Minn.—Bentonize, Inc. v. Green, 431 N.W.2d 579 (Minn. Ct. App. 1988).
3 Tex.—Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945).
4 Colo.—Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).
Mo.—Meyerhardt v. Fredman, 131 S.W.2d 916 (Mo. Ct. App. 1939).
N.C.—Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236 (1937).
County 1993).
Pa.—County of Somerset v. George, 138 Pa. Commw. 87, 587 A.2d 360 (1991).
5 Ill.—Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill. App. 3d 633, 201 Ill. Dec. 476, 636 N.E.2d
908 (1st Dist. 1994).
6 Mass.—Herlihy v. Kane, 310 Mass. 457, 38 N.E.2d 620 (1941).
7 Ohio—Newark Orthopedics, Inc. v. Brock, 634 N.E.2d 278 (Ohio Ct. App. 10th Dist. Franklin County 1994).

Works.

Judgments
§ 449. Allegation of meritorious claim or defense in application for

opening or vacating judgment—Sufficiency of asserted claim or defense

To constitute a meritorious defense or cause of action in support of an application for relief from a judgment, the claim
must be legally sufficient, in the sense that a different result would likely result; it may not be merely technical, unjust,
or inequitable.
The meritorious and substantial cause of action or defense that must be shown in support of an application for relief from a
judgment is one that raises questions of law deserving investigation, or a real controversy concerning the essential facts.1 The
movant does not need to establish that the movant would prevail on the merits, but only that the defense is meritorious.2 This
is a low bar, and a party need not actually prove its proposed defenses to meet this standard.3 The assertion of a meritorious
defense requires only a clear and specific proffer of a defense that, if proven, would preclude total or partial recovery by the
claimant or counterclaimant.4 A substantial likelihood that a new trial would have a different result is sufficient.5
Matter that would be a sufficient defense to an action is not necessarily a meritorious defense warranting the vacation of a
judgment that has already been entered.6 A judgment will not be opened if the defense or claim is not meritorious, but is purely
technical in its character, or is dishonest or unconscionable.7 Instead, the defense or claim must be such that a judgment in
disregard of it is unjust and inequitable.8

A defense adjudicated and rejected in the underlying action may not be used again to satisfy the requirement of a meritorious
defense.9 There is also authority that a "meritorious defense" involves errors of fact, not law.10
Footnotes
1 Cal.—Doyle v. Rice Ranch Oil Co., 28 Cal. App. 2d 18, 81 P.2d 980 (2d Dist. 1938).
Colo.—Valley Bank of Frederick v. Rowe, 851 P.2d 267 (Colo. App. 1993).
Ill.—Mt. Zion State Bank & Trust v. Weaver, 226 Ill. App. 3d 783, 168 Ill. Dec. 583, 589 N.E.2d 983 (4th
Dist. 1992).
Mass.—Russell v. Foley, 278 Mass. 145, 179 N.E. 619 (1932).
N.C.—Dollar v. Tapp, 103 N.C. App. 162, 404 S.E.2d 482 (1991).
Tex.—Miles v. Dana, 13 Tex. Civ. App. 240, 36 S.W. 848 (1896).
Opponent's misconduct
A meritorious defense, for the purpose of a motion for relief from a judgment based on misconduct by the
opposing party, includes a showing that either liability is in doubt or the damages awarded were excessive
or inadequate.
Ind.—Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006).
2 S.C.—Thompson v. Hammond, 299 S.C. 116, 382 S.E.2d 900 (1989).
3 Utah—Metropolitan Water Dist. of Salt Lake and Sandy v. Sorf, 2013 UT 27, 304 P.3d 824 (Utah 2013).
4 Utah—Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, 270 P.3d 456 (Utah 2012).
5 Okla.—Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185 (Okla. 1999).
6 Ohio—Canal Winchester Bank v. Exline, 61 Ohio App. 253, 15 Ohio Op. 173, 28 Ohio L. Abs. 327, 22
N.E.2d 528 (2d Dist. Franklin County 1938).
7 Okla.—Featherstone v. Southwestern Lumber Co., 1926 OK 38, 116 Okla. 86, 243 P. 240 (1926).
Pa.—Richey v. Gibboney, 154 Pa. Super. 1, 34 A.2d 913 (1943).
8 Wyo.—Elstermeyer v. City of Cheyenne, 57 Wyo. 421, 120 P.2d 599 (1942).
9 Ill.—Mt. Zion State Bank & Trust v. Weaver, 226 Ill. App. 3d 783, 168 Ill. Dec. 583, 589 N.E.2d 983 (4th
Dist. 1992).
10 Ill.—People v. Pinkonsly, 207 Ill. 2d 555, 280 Ill. Dec. 311, 802 N.E.2d 236 (2003).

Works.

§ 450. Affidavits supporting application for opening or..., 49 C.J.S. Judgments §...
Judgments
§ 450. Affidavits supporting application for opening or vacating judgment

West's Key Number Digest, Judgment 389 to 391
A motion to open or vacate a judgment should be supported, under certain circumstances, by affidavits concerning the
facts on which the applicant relies.
A petition or motion to vacate a judgment should be verified1 or supported by affidavits concerning the facts alleged,2 except
where the facts necessary to support the application appear on the face of the record.3 An affidavit may not be necessary under
a rule of civil procedure,4 since oral testimony may be sufficient.5 On the other hand, it may be required that affidavits be filed
with the motion and not by a separate, later filing.6
An affidavit is not required where the judgment is void.7
Requisites and sufficiency.
The affidavits in support of the application should show the existence and nature of the judgment at issue,8 state the grounds on
which relief from it is requested, specifically and in detail,9 show the existence of a meritorious cause of action or defense,10 and
that applicant has acted with due diligence.11 The affidavit must state the facts positively and directly; it is not sufficient to allege

them on information and belief; however, affidavits made only on information and belief may serve to initiate the proceeding,
since the defect is not jurisdictional and may be cured by subsequently filing amended or supplemental affidavits based on
knowledge.12 Even if the affidavit in support of a motion to vacate contains hearsay, it can become competent evidence.13
Ordinarily, the application should be supported by an affidavit made by the party personally, but the necessary affidavits may
be made by the attorney or other person, provided that they are made on knowledge, instead of on information and belief, and
a sufficient reason is shown why an affidavit is not made by the party.14
An affidavit reciting facts that were not placed in evidence will not be considered, unless it also states that those facts were
newly discovered and not available at trial.15
Footnotes
1 Ark.—Farmers Union Mut. Ins. Co. v. Jordan, 200 Ark. 711, 140 S.W.2d 430 (1940).
Miss.—Hurst v. Gulf States Creosoting Co., 163 Miss. 512, 141 So. 346 (1932).
Okla.—Scott v. Bailey, 1946 OK 167, 197 Okla. 152, 169 P.2d 208 (1946).
2 Cal.—Hecq v. Conner, 203 Cal. 504, 265 P. 180 (1928).
Colo.—In re Marriage of Snyder, 701 P.2d 153 (Colo. App. 1985).
Mo.—Dallas-Johnson Properties, Inc. v. Hubbard, 823 S.W.2d 5 (Mo. Ct. App. E.D. 1991).
N.Y.—Precourt v. Kyanka, 168 A.D.2d 1006, 564 N.Y.S.2d 947 (4th Dep't 1990).
Ohio—Andy Estates Dev. Corp. v. Bridal, 68 Ohio App. 3d 455, 588 N.E.2d 978 (10th Dist. Franklin County
1991).
S.D.—Clarke v. Clarke, 423 N.W.2d 818 (S.D. 1988).
Tex.—Krchnak v. Fulton, 759 S.W.2d 524 (Tex. App. Amarillo 1988), writ denied, (July 12, 1989).
3 Ind.—Wabash Ry. Co. v. Gary, 191 Ind. 394, 132 N.E. 737 (1921).
Examination of files
It will not always be necessary to submit a supporting affidavit if grounds for the motion are clearly evidenced
from an examination of the files.
Wash.—In re Marriage of Tang, 57 Wash. App. 648, 789 P.2d 118 (Div. 1 1990).
4 Ala.—Ex parte Owen, 860 So. 2d 877 (Ala. 2003).
N.D.—First Federal Sav. and Loan Ass'n of Bismarck v. Hulm, 328 N.W.2d 837 (N.D. 1982).
5 Ala.—Ex parte Owen, 860 So. 2d 877 (Ala. 2003).
6 Mo.—Epperson v. Sheldon, 729 S.W.2d 46 (Mo. Ct. App. S.D. 1987).
7 Cal.—County of Ventura v. Tillett, 133 Cal. App. 3d 105, 183 Cal. Rptr. 741 (2d Dist. 1982) (disapproved of
on other grounds by, County of Los Angeles v. Soto, 35 Cal. 3d 483, 198 Cal. Rptr. 779, 674 P.2d 750 (1984)).
8 N.M.—Singleton v. Sanabrea, 1931-NMSC-034, 35 N.M. 491, 2 P.2d 119 (1931).
9 Cal.—Elston v. City of Turlock, 38 Cal. 3d 227, 211 Cal. Rptr. 416, 695 P.2d 713 (1985).
N.M.—Singleton v. Sanabrea, 1931-NMSC-034, 35 N.M. 491, 2 P.2d 119 (1931).
N.Y.—Precourt v. Kyanka, 168 A.D.2d 1006, 564 N.Y.S.2d 947 (4th Dep't 1990).
Attorney's conduct
Personal injury plaintiffs demonstrated through their affidavits that their attorney abandoned representing
them by failing to comply with an order compelling discovery when he had discovery materials in his
possession, and to attend a hearing on a motion to dismiss for failure to comply with that discovery order
after proper notice.
Ohio—Whitt v. Bennett, 82 Ohio App. 3d 792, 613 N.E.2d 667 (2d Dist. Montgomery County 1992).
10 § 447.

11 § 446.
13 Cal.—In re Marriage of Kerry, 158 Cal. App. 3d 456, 204 Cal. Rptr. 660 (2d Dist. 1984).
Affidavit failing to show why not made by the party insufficient
Okla.—Crowley-Southerland Commission Co. v. Husband, 42 Okla. 77, 140 P. 1144 (1914).
15 Ill.—Fentress v. Triple Min., Inc., 261 Ill. App. 3d 930, 200 Ill. Dec. 1, 635 N.E.2d 102 (4th Dist. 1994).

Works.

§ 451. Answer in proceeding to open or vacate judgment, 49 C.J.S. Judgments § 451
Judgments
§ 451. Answer in proceeding to open or vacate judgment

An answer is required where the proceeding to open or vacate the judgment is by action, but not where it is by a motion
in the case.
An application for relief from a judgment that takes the form of a motion in the case is governed by the rules applicable to
motions generally, and formal pleadings in opposition are not required.1 However, where the application is made by formal
action or petition, the usual rules of pleading apply, and the holder of the judgment must controvert the allegations of the petition
or complaint by an answer.2
A cross-complaint seeking affirmative relief may not be interposed in opposition to an application to open or vacate a judgment.3
Footnotes
1 Md.—Craig v. Hebron Bldg. & Loan Ass'n No. 2, 171 Md. 522, 189 A. 218 (1937).
Mass.—Lynch v. Springfield Safe Deposit & Trust Co., 300 Mass. 14, 13 N.E.2d 611 (1938).
As to the form of the proceeding, see § 433.

§ 451. Answer in proceeding to open or vacate judgment, 49 C.J.S. Judgments § 451
2 Pa.—Silent Auto Corporation of Northern New Jersey v. Folk, 97 Pa. Super. 588, 1930 WL 3450 (1930).
3 Ark.—Jerome Hardwood Lumber Co. v. Jackson-Vreeland Land Corporation, 160 Ark. 303, 254 S.W. 660
(1923).

Works.

§ 452. Counteraffidavits in opposition to opening or..., 49 C.J.S. Judgments §...
Judgments
§ 452. Counteraffidavits in opposition to opening or vacating judgment

Counteraffidavits, in opposition to opening or vacating the judgment, may be submitted that contest the alleged grounds
and the movant's due diligence.
The party seeking to sustain a judgment, against a motion for relief from it, may present affidavits in opposition to those of
the moving party, with regard to the alleged grounds for vacating the judgment or the matters excusing an apparent lack of due
diligence.1 However, the existence of a meritorious cause of action or defense,2 as shown by the moving party's affidavit of
merits,3 may not be controverted by counteraffidavits,4 because the court does not determine the merits of the claim or defense,
but only whether a prima facie case has been made so as to justify trying it.5
Footnotes
1 Ill.—In re Marriage of Hoppe, 220 Ill. App. 3d 271, 162 Ill. Dec. 767, 580 N.E.2d 1186 (1st Dist. 1991).
2 § 447.
3 § 450.

§ 452. Counteraffidavits in opposition to opening or..., 49 C.J.S. Judgments §...

N.D.—Bothum v. Bothum, 72 N.D. 649, 10 N.W.2d 603 (1943).
5 § 460.

Works.

§ 453. Notice of application for opening or vacating judgment, 49 C.J.S. Judgments § 453
Judgments
§ 453. Notice of application for opening or vacating judgment

An application for relief from a judgment generally must be on notice to the adverse parties, and, where the proceeding
is by an action, process must be served.
As a general rule, an application for relief from a judgment must be on notice to the adverse parties.1 The parties whose rights
may be prejudiced are entitled to notice.2 However, if the court would have been justified in vacating the judgment on its own
motion, lack or insufficiency of notice is immaterial.3 Notice may be waived by appearance or otherwise.4
Where the proceedings are by action, or by way of statutory petition or complaint and summons,5 a summons must be served,6
but process need not be served where the proceeding is by motion in the original action.7
Sufficiency.
A notice of a motion to vacate should advise the party of the nature of the proceeding, the judgment to be affected, and the
grounds on which the motion will be based.8 Statutes governing the time, form, and manner of notice must be observed.9

Service.
Process must be served on the party, and service on the party's attorney is insufficient, where the proceeding to vacate is by
action or a statutory petition and summons.10 However, some authority holds that service of a petition for relief from a judgment
on a party's attorney of record in the original proceeding is sufficient, when the original attorney is in court representing the
client in a matter ancillary to the original judgment.11
Notice of a motion may be served either on the party12 or on the attorney of record,13 but under some decisions, service on the
attorney is insufficient.14 If the party is dead, notice must be served on the legal representative.15
So long as the adversary party has a meaningful opportunity to be heard and adequate time to prepare, a technical deviation
from the proper procedure for service may be inconsequential.16
Notice by publication.
A motion for relief from a judgment is not a proceeding for which notice by publication is usually authorized,17 but service by
publication may be permissible in otherwise proper cases, where the proceeding is by way of action, or by a statutory petition
or complaint and summons.18
Footnotes
1 Cal.—Bond v. Farmers & Merchants Nat. Bank, Los Angeles, 64 Cal. App. 2d 842, 149 P.2d 722 (2d Dist.
1944).
Ga.—Jackson v. Jackson, 199 Ga. 716, 35 S.E.2d 258 (1945).
Ill.—Padilla v. Vazquez, 223 Ill. App. 3d 1018, 166 Ill. Dec. 351, 586 N.E.2d 309 (1st Dist. 1991).
Ind.—Penn v. Ducomb, 213 Ind. 133, 12 N.E.2d 116 (1938).
Mo.—Hatfield v. Cristopher, 841 S.W.2d 761 (Mo. Ct. App. W.D. 1992).
Ohio—Rice v. Bethel Associates, Inc., 35 Ohio App. 3d 133, 520 N.E.2d 26 (9th Dist. Summit County 1987).
Wash.—Wilson v. Henkle, 45 Wash. App. 162, 724 P.2d 1069 (Div. 1 1986).
2 Okla.—In re Estate of Hughes, 2004 OK 20, 90 P.3d 1000 (Okla. 2004), as corrected, (Apr. 8, 2004).
3 Kan.—Hetzer v. Koogler, 87 Kan. 37, 123 P. 876 (1912).
As to vacating a judgment on the court's own motion, see § 434.
4 Ill.—Padilla v. Vazquez, 223 Ill. App. 3d 1018, 166 Ill. Dec. 351, 586 N.E.2d 309 (1st Dist. 1991).
Ind.—Penn v. Ducomb, 213 Ind. 133, 12 N.E.2d 116 (1938).
S.D.—In re Barnes' Estate, 53 S.D. 200, 220 N.W. 527 (1928).
Appearance to contest jurisdiction
A defendant who did not receive notice of the plaintiff's petition for relief from a judgment, but whose
attorney did, and who made a special appearance solely to contest the trial court's jurisdiction, to move that
the trial court quash the petition, and to contend that the court lacked jurisdiction due to the defect in giving
notice, did not waive the jurisdictional defect.
Ill.—Welfelt v. Schultz Transit Co., 144 Ill. App. 3d 767, 98 Ill. Dec. 577, 494 N.E.2d 699 (1st Dist. 1986).
5 § 433.
6 La.—Willis v. Travelers Ins. Co., 545 So. 2d 721 (La. Ct. App. 3d Cir. 1989).
7 Ark.—State v. West, 160 Ark. 413, 254 S.W. 828 (1923).
8 Ill.—Harris Trust & Sav. Bank v. Illinois Fair Plan Ass'n, 194 Ill. App. 3d 761, 141 Ill. Dec. 385, 551 N.E.2d
378 (1st Dist. 1990).
9 Cal.—Jameson v. Warren, 91 Cal. App. 590, 267 P. 372 (1st Dist. 1928).

10 Ill.—Harris Trust & Sav. Bank v. Illinois Fair Plan Ass'n, 194 Ill. App. 3d 761, 141 Ill. Dec. 385, 551 N.E.2d
378 (1st Dist. 1990).
Wash.—State v. Superior Court for King County, 164 Wash. 618, 3 P.2d 1098, 78 A.L.R. 366 (1931).
11 Ill.—Welfelt v. Schultz Transit Co., 144 Ill. App. 3d 767, 98 Ill. Dec. 577, 494 N.E.2d 699 (1st Dist. 1986).
12 Okla.—Neff v. Edwards, 1924 OK 550, 99 Okla. 176, 226 P. 358 (1924).
13 Ark.—State v. West, 160 Ark. 413, 254 S.W. 828 (1923).
Okla.—Neff v. Edwards, 1924 OK 550, 99 Okla. 176, 226 P. 358 (1924).
14 Iowa—McCoy v. Fire Ass'n of Philadelphia, 192 Iowa 453, 185 N.W. 101 (1921).
15 Ill.—In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 192 Ill. Dec. 398, 625 N.E.2d 358 (1st Dist. 1993).
16 Wash.—Lindgren v. Lindgren, 58 Wash. App. 588, 794 P.2d 526 (Div. 1 1990).
17 Iowa—Des Moines Union Ry. Co. v. Dist. Court of Polk County, 170 Iowa 568, 153 N.W. 217 (1915).
18 Okla.—Parker v. Board of Com'rs of Okmulgee County, 1940 OK 278, 187 Okla. 308, 102 P.2d 880 (1940).

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§ 454. Parties in proceeding to open or vacate judgment,..., 49 C.J.S. Judgments §...
Judgments
d. Parties
§ 454. Parties in proceeding to open or vacate judgment, generally

Generally, all parties to a judgment should be joined in a proceeding for relief from a
judgment.
As a general rule, all parties to a judgment should be made parties to a proceeding for relief from
it.1 The real parties in interest must be brought before the court.2 However, it is not necessary
that a judgment be vacated as to all of the defendants, if their liability is several as well as joint.3
Generally one who is not a party to the judgment should not be joined.4

§ 454. Parties in proceeding to open or vacate judgment,..., 49 C.J.S. Judgments §...
Footnotes
1 Ohio—In re Estate of Alexander, 92 Ohio App. 3d 190, 634 N.E.2d 670 (8th Dist. Cuyahoga County 1993).
Tex.—Wixom v. Bowers, 152 S.W.2d 896 (Tex. Civ. App. Galveston 1941), writ refused, (Oct. 15, 1941).
2 Ky.—Snyder v. Snyder, 769 S.W.2d 70 (Ky. Ct. App. 1989).
3 N.Y.—Hewlett v. Van Voorhis, 196 A.D. 322, 187 N.Y.S. 533 (1st Dep't 1921), aff'd, 233 N.Y. 642, 135
N.E. 952 (1922).
4 Ga.—Buchannon v. Park, 25 Ga. App. 635, 104 S.E. 20 (1920).

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§ 455. Parties to underlying action entitled to apply for..., 49 C.J.S. Judgments §...
Judgments
d. Parties
§ 455. Parties to underlying action entitled to apply for opening or vacating judgment

A party seeking relief from a judgment must have been prejudicially affected by it, although,
in some instances, this may include a prevailing party.
The general rule is that an application for relief from a judgment may be made only by a party
to the record,1 who, in some way, has been prejudicially affected by the judgment.2 A third-party
defendant3 or intervenor4 has standing, if the judgment would deprive that person of substantial
rights.

For purposes of the rule authorizing a party to move to vacate a judgment, a party is one who has
the right to control the proceedings, to examine and cross-examine the witnesses, and to appeal.5
A "legal representative," for the purpose of a rule of civil procedure providing relief from a
judgment or order, is one who, by operation of law, is tantamount to a party with relation to the
matter involved in the principal action, such as a trustee in bankruptcy.6
Successful party.
Courts have the power in a proper case to open a judgment at the instance of the party in whose
favor it was rendered, where it may be prejudicial or not so favorable as it should have been.7
However, a party may not object to so much of a judgment as is clearly favorable to the party,
even though it is unauthorized,8 or to a judgment in the movant's favor rendered at the movant's
instance with knowledge of its irregularity.9
Footnotes
1 Ark.—Golightly v. New York Life Ins. Co., 196 Ark. 1024, 120 S.W.2d 697 (1938).
Del.—Rhoads v. Mitchell, 43 Del. 343, 47 A.2d 174 (Super. Ct. 1946).
Ga.—Pope v. U.S. Fidelity & Guaranty Co., 67 Ga. App. 560, 21 S.E.2d 289 (1942) (disapproved of on
other grounds by, Gates v. Gates, 197 Ga. 11, 28 S.E.2d 108 (1943)).
Mo.—Inter-River Drainage Dist. of Missouri v. Henson, 99 S.W.2d 865 (Mo. Ct. App. 1936).
N.Y.—Jericho Union Free School Dist. No. 15, Town of Oyster Bay v. Board of Assessors of Nassau County,
131 A.D.2d 482, 516 N.Y.S.2d 247 (2d Dep't 1987).
Okla.—Fidelity Bldg. & Loan Ass'n v. Newell, 1936 OK 206, 176 Okla. 184, 55 P.2d 131 (1936).
Tex.—Standard Oil Co. v. State, 132 S.W.2d 612 (Tex. Civ. App. Austin 1939), writ dismissed, judgment
correct.
Wash.—State v. Superior Court for Pierce County, 166 Wash. 502, 7 P.2d 604 (1932).
Wis.—Home Owners' Loan Corp. v. Mascari, 247 Wis. 190, 19 N.W.2d 283 (1945).
2 Ill.—Browning, Ektelon Div. v. Williams, 256 Ill. App. 3d 299, 195 Ill. Dec. 414, 628 N.E.2d 878 (1st Dist.
1993).
Mich.—Detroit Fidelity & Sur. Co. v. Donaldson, 255 Mich. 129, 237 N.W. 380 (1931).
N.Y.—Peters v. Berkeley, 219 A.D. 261, 219 N.Y.S. 709 (1st Dep't 1927).
Okla.—Savoy Oil Co. v. Emery, 1928 OK 572, 137 Okla. 67, 277 P. 1029 (1928).
3 Ill.—Glassberg v. Warshawsky, 266 Ill. App. 3d 585, 202 Ill. Dec. 881, 638 N.E.2d 749 (1st Dist. 1994).
4 Nev.—Estate of Lomastro ex rel. Lomastro v. American Family Ins. Group, 124 Nev. 1060, 195 P.3d 339
(2008).
5 Minn.—Matter of Bowers, 456 N.W.2d 734 (Minn. Ct. App. 1990).
6 Ala.—Ex parte Overton, 985 So. 2d 423 (Ala. 2007).
7 La.—Ford v. Vetsch, 167 So. 842 (La. Ct. App., Orleans 1936).
Mont.—Meyer v. Lemley, 86 Mont. 83, 282 P. 268 (1929).
N.J.—Grant Inventions Co. v. Grant Oil Burner Corp., 104 N.J. Eq. 341, 145 A. 721 (Ch. 1929).

N.Y.—Chase Lincoln First Bank, N.A. v. Kesselring-Dixon Inc., 147 Misc. 2d 12, 554 N.Y.S.2d 379 (Sup
1990).
8 Cal.—Kellett v. Kellett, 110 Cal. App. 691, 294 P. 755 (2d Dist. 1930).
9 Miss.—Cratin v. Cratin, 178 Miss. 881, 174 So. 255 (1937).

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§ 456. Application for opening or vacating judgment by..., 49 C.J.S. Judgments §...
Judgments
d. Parties
§ 456. Application for opening or vacating judgment by strangers to judgment

An application for relief from a judgment may be made by a person who is not a party to it
generally only if that person's rights were injuriously affected by it.
A stranger to the record who was neither a party nor a privy to the action may not make an
application for relief from a judgment,1 unless authorized by a statute,2 or that person's rights have
been injuriously affected by the judgment.3 For a nonparty to maintain the challenge, the right
that is jeopardized by the enforcement of the judgment must have existed at the time judgment
was rendered.4

Persons who, while not parties to the record, are the real parties in interest affected by the judgment
stand in such relation to the judgment that they are entitled to move for relief from it.5 This includes
a person who has acquired the entire interest in the subject matter of the action.6 A transferee
pendente lite of all the interest of a defendant becomes the real party in interest, and may apply
for relief from the judgment.7 Judgment creditors whose interests are affected may maintain an
application to vacate a prior judgment against their debtor on the ground that the judgment is
fraudulent as far as they are concerned.8 On the other hand, an attorney for a party generally
lacks standing to seek relief from a judgment for or against the client, even though the attorney's
compensation may depend on the amount or terms of the judgment.9
Footnotes
1 Ark.—Milberg, Weiss, Bershad, Hynes, and Lerach, LLP v. State, 342 Ark. 303, 28 S.W.3d 842 (2000).
Cal.—Zirbes v. Stratton, 187 Cal. App. 3d 1407, 232 Cal. Rptr. 653 (2d Dist. 1986).
Colo.—Denver & R.G.W.R. Co. v. Town of Castle Rock, 99 Colo. 340, 62 P.2d 1164 (1936) (overruled
in part on other grounds by, Evans v. Board of County Com'rs of El Paso County, 174 Colo. 97, 482 P.2d
968 (1971)).
Mo.—Whitehead v. Lakeside Hosp. Ass'n, 844 S.W.2d 475 (Mo. Ct. App. W.D. 1992).
Mont.—Moore v. Capital Gas Corp. (State Report Title: Moore v. Capitol Gas Corp.), 117 Mont. 148, 158
P.2d 302 (1945).
Nev.—Lopez v. Merit Ins. Co., 109 Nev. 553, 853 P.2d 1266 (1993).
N.C.—Lawyers Title Ins. Corp. v. Langdon, 91 N.C. App. 382, 371 S.E.2d 727 (1988).
Ohio—Suiter v. Suiter, 74 Ohio App. 44, 29 Ohio Op. 237, 41 Ohio L. Abs. 120, 57 N.E.2d 616 (2d Dist.
Franklin County 1944).
Tex.—Kelly v. Lee, 736 S.W.2d 750 (Tex. App. Houston 14th Dist. 1987).
Wash.—Ballard Sav. & Loan Ass'n v. Linden, 188 Wash. 490, 62 P.2d 1364 (1936).
3 Cal.—Greif v. Dullea, 66 Cal. App. 2d 986, 153 P.2d 581 (1st Dist. 1944).
Kan.—White v. Central Mut. Ins. Co., 150 Kan. 47, 91 P.2d 1 (1939).
N.C.—Carter v. Smith, 209 N.C. 788, 185 S.E. 15 (1936).
N.D.—Guenther v. Funk, 67 N.D. 543, 274 N.W. 839, 112 A.L.R. 428 (1937).
S.C.—Ex parte Hart, 190 S.C. 473, 2 S.E.2d 52 (1939).
4 Va.—Gulfstream Bldg. Associates, Inc. v. Britt, 239 Va. 178, 387 S.E.2d 488 (1990).
5 N.C.—Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609 (1934).
6 N.C.—Hood ex rel. Merchants' & Manufacturers' Bank of Andrews v. Freel, 206 N.C. 432, 174 S.E. 310
(1934).
7 Cal.—McKendrick v. Western Zinc Mining Co., 165 Cal. 24, 130 P. 865 (1913).
8 Mo.—Shepard v. Shepard, 353 Mo. 1057, 186 S.W.2d 472 (1945).

N.C.—Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609 (1934).
Ohio—Hooffstetter v. Adams, 67 Ohio App. 21, 21 Ohio Op. 70, 35 N.E.2d 896 (9th Dist. Summit County
1941).


Government Works.

§ 457. Standing to attack void judgments, 49 C.J.S. Judgments § 457
Judgments
d. Parties
§ 457. Standing to attack void judgments

A void judgment may be attacked by any person interested or affected by it.
A void judgment may be attacked at the instance of any person interested or affected by it.1
Mortgagors and lienors have a sufficient interest to attack a judgment for invalidity.2
Footnotes

§ 457. Standing to attack void judgments, 49 C.J.S. Judgments § 457
1 Kan.—Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 720 P.2d 1121 (1986).
La.—In re Webster's Tutorship, 188 La. 623, 177 So. 688 (1937).
Mich.—Williams v. Truax, 265 Mich. 323, 251 N.W. 375 (1933).
N.C.—Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609 (1934).
Okla.—Simmons v. Howard, 1929 OK 28, 136 Okla. 118, 276 P. 718 (1929).
Nonparty against whom judgment was rendered
Ohio—Soc. Bank & Trust Co. v. Zigterman, 82 Ohio App. 3d 124, 611 N.E.2d 477 (3d Dist. Hancock
County 1992).
2 W. Va.—George v. Male, 109 W. Va. 222, 153 S.E. 507 (1930).

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§ 458. Necessity of hearing on application to open or..., 49 C.J.S. Judgments §...
Judgments
e. Hearing
§ 458. Necessity of hearing on application to open or vacate judgment

The parties are generally entitled to a hearing on an application for relief from a judgment, if there is a material dispute
over the facts.
The applicant is entitled to a hearing on an application for relief from a judgment,1 if the material submitted by the applicant
contains allegations of operative facts demonstrating that relief is warranted,2 and the facts sufficient to support granting relief
are challenged by the opposing party.3 Since a hearing is required if a disputed factual issue exists that is material to whether relief
is justified,4 on a contested application, the court should hear both parties and examine all pertinent facts and circumstances.5
All parties must be afforded an opportunity to present evidence on disputed fact issues before a judgment may be vacated.6 It
is an abuse of discretion to deny a motion to open a judgment without holding a hearing and determining relevant facts, where
the movant alleges facts that would warrant relief7 or there is evidence supporting the motion,8 or to grant the motion without
affording the parties an opportunity to present evidence on disputed factual issues.9 It is also an error to grant or dismiss the
motion summarily or on an ex parte hearing, unless the question at issue is one that can be determined from an inspection of
the record, or unless the facts are not disputed.10 A petition for relief from a judgment should not be dismissed unless it clearly
appears that no set of facts could be proved under the pleadings that would entitle the petitioner to relief.11

However, a hearing is not always required.12 A court may deny the motion without a hearing, if the material submitted by the
movant does not allege facts that demonstrate that relief is warranted.13 Moreover, the failure to hold a hearing may not be
prejudicial under particular circumstances,14 and the right to a hearing may be waived if the parties fail to request it.15
Footnotes
1 N.C.—Cincinnati Coffin Co. v. Yopp, 206 N.C. 716, 175 S.E. 164 (1934).
2 Ohio—Gaines & Stern Co., L.P.A. v. Schwarzwald, Robiner, Wolf and Rock Co., L.P.A., 70 Ohio App. 3d
643, 591 N.E.2d 866 (8th Dist. Cuyahoga County 1990), dismissed, 59 Ohio St. 3d 718, 572 N.E.2d 691
(1991).
3 Fla.—Goudie v. Garcia, 584 So. 2d 100 (Fla. 3d DCA 1991).
Ill.—In re Marriage of Breyley, 247 Ill. App. 3d 486, 187 Ill. Dec. 215, 617 N.E.2d 423 (3d Dist. 1993).
4 Okla.—In re Estate of Hughes, 2004 OK 20, 90 P.3d 1000 (Okla. 2004), as corrected, (Apr. 8, 2004).
W. Va.—Strobridge v. Alger, 184 W. Va. 192, 399 S.E.2d 903 (1990).
Notice of judgment
A court could not deny a motion to open a judgment based on the ground that the court did not have
jurisdiction beyond a specified period, without a hearing on a claim that the movant did not receive notice
of the judgment during the specified period.
Conn.—Morelli v. Manpower, Inc., 34 Conn. App. 419, 642 A.2d 9 (1994).
5 N.M.—Arias v. Springer, 1938-NMSC-025, 42 N.M. 350, 78 P.2d 153 (1938).
Okla.—McNac v. Kinch, 1925 OK 605, 113 Okla. 59, 238 P. 424 (1925).
Tex.—Kern v. Smith, 164 S.W.2d 193 (Tex. Civ. App. Texarkana 1942), writ refused w.o.m., (Oct. 14, 1942).
As to the hearing and determination of an application for relief from a default judgment, see §§ 596 et seq.
As to the hearing on an application to open a judgment by confession, see § 498.
7 Ill.—Department of Conservation v. Cipriani, 202 Ill. App. 3d 986, 149 Ill. Dec. 369, 561 N.E.2d 739 (1st
Dist. 1990) (rejected on other grounds by, People v. Howard, 363 Ill. App. 3d 741, 300 Ill. Dec. 537, 844
N.E.2d 980 (1st Dist. 2006)).
Ohio—Society Natl. Bank v. Val Halla Athletic Club & Recreation Ctr., Inc., 63 Ohio App. 3d 413, 579
N.E.2d 234 (9th Dist. Summit County 1989).
8 Alaska—Stinson v. Holder, 996 P.2d 1238 (Alaska 2000).
1993).
Summary adjudication process may not be used
11 Ill.—Uptown Federal Sav. and Loan Ass'n of Chicago v. Kotsiopoulos, 105 Ill. App. 3d 444, 61 Ill. Dec.
323, 434 N.E.2d 476 (1st Dist. 1982).
12 Ohio—Gaines & Stern Co., L.P.A. v. Schwarzwald, Robiner, Wolf and Rock Co., L.P.A., 70 Ohio App. 3d
(1991).
Okla.—In re Estate of Hughes, 2004 OK 20, 90 P.3d 1000 (Okla. 2004), as corrected, (Apr. 8, 2004).
S.D.—Matter of T.M.B., 416 N.W.2d 260 (S.D. 1987).
13 Conn.—Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008).
Fla.—Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994).
Fla.—Freemon v. Deutsche Bank Trust Co. Americas, 46 So. 3d 1202 (Fla. Dist. Ct. App. 2010).
Ill.—Universal Outdoor, Inc. v. City of Des Plaines, 236 Ill. App. 3d 75, 177 Ill. Dec. 515, 603 N.E.2d 585
(1st Dist. 1992).

Ohio—Gaines & Stern Co., L.P.A. v. Schwarzwald, Robiner, Wolf and Rock Co., L.P.A., 70 Ohio App. 3d
(1991).
As to the scope of the inquiry, see § 460.
Hearing unnecessary if grounds are frivolous
Vt.—Sandgate School Dist. v. Cate, 178 Vt. 625, 2005 VT 88, 883 A.2d 774, 202 Ed. Law Rep. 215 (2005).
14 Other opportunities to subpoena
A wife failed to show that she was prejudiced by the trial court's failure to afford her notice and a hearing
before denying her motion to vacate or amend an order awarding her only part of the attorney's fees and costs
she allegedly incurred in pursuing a claim against her former husband, despite her claim that such a hearing
would have been her only opportunity to subpoena her former attorney to testify in support of her motion for
fees and costs, where she had other opportunities to subpoena her former attorney, and did not offer evidence
to support her claim that she attempted to compel him to provide her with an affidavit regarding his fees.
N.C.—Ollo v. Mills, 136 N.C. App. 618, 525 S.E.2d 213 (2000).
15 Ill.—Smith v. Cole, 256 Ill. App. 3d 806, 197 Ill. Dec. 962, 632 N.E.2d 31 (1st Dist. 1993).

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§ 459. Affidavits and oral testimony in hearing on..., 49 C.J.S. Judgments §...
Judgments
e. Hearing
§ 459. Affidavits and oral testimony in hearing on application to open or vacate judgment

A motion for relief from a judgment may be heard on affidavits, but oral evidence may be required, such as where the
affidavits conflict.
An application for relief from a judgment may be tried on affidavits or depositions where the proceeding is by motion or a
petition in the case.1 The court's reliance on affidavits may be proper,2 and an unrebutted affidavit may be taken as true.3
If not satisfied with the affidavits, the court may require that the parties present oral evidence.4 It has been held that, where the
affidavits are in conflict, testimony must be taken,5 but it has also been held that where the conflict is not likely to be resolved
by the taking of testimony, it is not necessary.6
In the absence of a statutory right to give oral testimony, the court may deny a request to present oral testimony,7 such as where
acceptable evidentiary substitutes are available to eliminate factual issues.8 The movant's due process rights are not violated by
a trial court's decision not to conduct hearings on the motion, where the movant has been permitted to present memoranda and
other written submissions to the court.9 However, the proof necessary to support the motion may not be supplied by argument or
representations of counsel, in the absence of a stipulation.10 Thus, unsworn statements of counsel do not constitute evidence.11

§ 459. Affidavits and oral testimony in hearing on..., 49 C.J.S. Judgments §...
Footnotes
S.D.—Matter of T.M.B., 416 N.W.2d 260 (S.D. 1987).
2 Me.—New Maine Nat. Bank v. Nemon, 588 A.2d 1191 (Me. 1991).
3 Ill.—Gas Power, Inc. v. Forsythe Gas Co., 249 Ill. App. 3d 255, 188 Ill. Dec. 389, 618 N.E.2d 959 (1st
Dist. 1993).
4 Ark.—Union Sawmill Co. v. Langley, 188 Ark. 316, 66 S.W.2d 300 (1933).
5 N.Y.—Dege v. Mascot Realty Corp., 243 A.D. 546, 275 N.Y.S. 884 (2d Dep't 1934).
6 N.Y.—Halper v. Broadmain Const. Corp., 60 N.Y.S.2d 533 (Sup 1945).
7 Or.—State ex rel. Frohnmayer v. Low, 105 Or. App. 357, 804 P.2d 1217 (1991).
9 R.I.—Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174 (R.I. 2008).
10 Fla.—Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838 (Fla. 2d DCA 1994).
11 R.I.—DeLuca v. DeLuca, 839 A.2d 1237 (R.I. 2004).

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§ 460. Scope of inquiry into sufficiency of application to..., 49 C.J.S. Judgments §...
Judgments
e. Hearing
§ 460. Scope of inquiry into sufficiency of application to open or vacate judgment

The inquiry into the sufficiency of an application for relief from a judgment is into whether the facts are sufficient to
establish the alleged grounds, and while the existence of a meritorious claim or defense must be found, that requires
only a prima facie showing, and not a determination of its underlying merit.
To trigger an evidentiary hearing on a motion to vacate a judgment, the moving party should present affidavits, sworn testimony,
or witnesses who are prepared to testify at the hearing to grounds that, if found to be true, would support relief from the judgment
in question.1 The facts that, if controverted, require a hearing are those sufficient to support an order vacating the judgment,
not those that must be proved to succeed in the underlying action on the merits.2
It is proper for the court to hear and determine the existence and sufficiency of the alleged grounds for relief from the judgment
before hearing or deciding the existence of a meritorious cause of action or defense.3 Should the court find that the claimed
grounds are not sufficient, or are not proved, it is unnecessary to inquire into the validity of the defense.4
If grounds for opening the judgment are established, and a meritorious cause of action or defense is required,5 a hearing may be
held on that issue,6 although both issues may be tried together where the parties waive the right to have them tried separately.7
However, the court is not to try and decide the merits of the proposed claim or defense,8 but is only to inquire whether it is

meritorious, interposed in good faith, and prima facie sufficient.9 To make a prima facie showing of a meritorious defense,
the movant need only present evidence that, if credited, demonstrates that a different result would be reached if the case were
retried on the merits and that it is unjust to allow the judgment to stand.10 Any doubt concerning the merits should be resolved
in favor of the motion,11 and the petition should not be dismissed, unless it appears beyond doubt that the petitioner cannot
prove any fact to support the claim.12
The inquiry will generally be limited to the matters alleged in support of the motion and in opposition to it.13 Since formal
pleadings in opposition are often not required,14 an objection to the petition that has not been raised in a court paper may
nevertheless be urged at the hearing.15
Footnotes
Catch-all ground
If the facts alleged are extraordinary or unique, such that relief may be warranted under a catch-all provision
permitting relief from a judgment for other reasons justifying relief, a hearing will be held on the truth or
falsity of the allegations.
Wis.—Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, 282 Wis. 2d 46, 698 N.W.2d 610 (2005).
2 Ill.—Smith v. Cole, 256 Ill. App. 3d 806, 197 Ill. Dec. 962, 632 N.E.2d 31 (1st Dist. 1993).
3 Ark.—Jerome Hardwood Lumber Co. v. Jackson-Vreeland Land Corporation, 160 Ark. 303, 254 S.W. 660
(1923).
Ohio—Horwitz v. Murri, 24 Ohio App. 109, 5 Ohio L. Abs. 134, 156 N.E. 420 (8th Dist. Cuyahoga County
1927).
4 N.M.—Woodson v. Raynolds, 1938-NMSC-010, 42 N.M. 161, 76 P.2d 34 (1938).
Wash.—Harter v. King County, 11 Wash. 2d 583, 119 P.2d 919 (1941).
5 § 447.
1993).
8 Ohio—Lutkenhouse v. Vella, 42 Ohio L. Abs. 520, 60 N.E.2d 798 (Ct. App. 8th Dist. Cuyahoga County
1945).
Okla.—Nero v. Brooks, 1926 OK 71, 116 Okla. 279, 244 P. 588 (1926).
S.C.—Thompson v. Hammond, 299 S.C. 116, 382 S.E.2d 900 (1989).
Wash.—State v. Superior Court In and For Spokane County, 148 Wash. 24, 267 P. 775 (1928).
9 N.C.—PYA/Monarch, Inc. v. Ray Lackey Enterprises, Inc., 96 N.C. App. 225, 385 S.E.2d 170 (1989).
Ohio—Lutkenhouse v. Vella, 42 Ohio L. Abs. 520, 60 N.E.2d 798 (Ct. App. 8th Dist. Cuyahoga County
1945).
Okla.—Honeycutt v. Severin, 1940 OK 66, 186 Okla. 509, 98 P.2d 1093 (1940).
Wash.—State v. Superior Court In and For Spokane County, 148 Wash. 24, 267 P. 775 (1928).
10 Ind.—Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006).
11 Ohio—Rogers v. United Presidential Life Ins. Co., 36 Ohio App. 3d 126, 521 N.E.2d 845 (10th Dist. Franklin
County 1987).
13 Pa.—Keystone Nat. Bank of Manheim, now to Use of Balmer v. Deamer, 144 Pa. Super. 52, 18 A.2d 540
(1941).
Wash.—Harter v. King County, 11 Wash. 2d 583, 119 P.2d 919 (1941).
14 § 451.

15 Mass.—Lynch v. Springfield Safe Deposit & Trust Co., 300 Mass. 14, 13 N.E.2d 611 (1938).

Works.

§ 461. Court's powers in hearing on application to open..., 49 C.J.S. Judgments §...
Judgments
e. Hearing
§ 461. Court's powers in hearing on application to open or vacate judgment

Issues raised on a motion for relief from judgment are generally tried by the court, and the court has the discretion to
grant a continuance to gather additional evidence or allow discovery.
Except where a statute gives a right to trial by jury, the issues of fact arising on a motion for relief from a judgment are triable
by the court,1 although it is within the court's power in a proper case to allow an issue to be tried by a jury.2 It is the court's
duty to weigh the evidence and determine the credibility of the witnesses.3
A court has the discretion to grant a continuance to allow the filing of additional affidavits or the presentation of additional
evidence.4
Discovery may be permitted in connection with a petition to obtain relief from a judgment.5
Footnotes
1 Ga.—Wright v. Archer, 210 Ga. App. 607, 436 S.E.2d 775 (1993).

§ 461. Court's powers in hearing on application to open..., 49 C.J.S. Judgments §...
Pa.—McCarty to Use of Hoblitzell Nat. Bank of Hyndman v. Emerick, 111 Pa. Super. 463, 170 A. 326
(1934).
2 Pa.—McCarty to Use of Hoblitzell Nat. Bank of Hyndman v. Emerick, 111 Pa. Super. 463, 170 A. 326
(1934).
3 Ill.—In re Marriage of Shelton, 127 Ill. App. 3d 775, 83 Ill. Dec. 11, 469 N.E.2d 618 (5th Dist. 1984).
Pa.—Helzlsouer, to Use of Citizens' Nat. Bank of Monessen v. Golub, 306 Pa. 474, 160 A. 118 (1932).
4 Ill.—Central Cleaners and Dyers v. Schild, 284 Ill. App. 267, 1 N.E.2d 90 (1st Dist. 1936).
5 Ill.—In re Marriage of Gidlund, 244 Ill. App. 3d 675, 185 Ill. Dec. 181, 614 N.E.2d 315 (1st Dist. 1993).

Works.

§ 462. Burden of proving facts in proceeding to open or..., 49 C.J.S. Judgments §...
Judgments
f. Evidence
§ 462. Burden of proving facts in proceeding to open or vacate judgment

The party who seeks relief from a judgment has the burden of proving the essential facts, including relating to the
grounds and timeliness of the motion.
The party who seeks relief from a judgment has the burden of proving the facts essential to obtain the relief asked.1 This
includes the grounds for relief,2 such as that the judgment is void for lack of jurisdiction or the like,3 fraud,4 irregularity,5 newly
discovered evidence,6 excusable neglect,7 mistake,8 events after the entry of judgment that would make further enforcement
inequitable,9 or circumstances constituting any other reason justifying relief.10 The movant also has the burden to prove
compliance with a requirement that the motion be brought within a specified11 or reasonable12 time, or a reasonable time within
an outer limit.13
Footnotes
1 Ala.—Alaskan Adventure Tours, Inc. v. City and Borough of Yakutat, 307 P.3d 955 (Alaska 2013).
Ill.—Krol v. Wincek, 258 Ill. App. 3d 706, 196 Ill. Dec. 856, 630 N.E.2d 1021 (1st Dist. 1994).

Ind.—Fairrow v. Fairrow, 559 N.E.2d 597 (Ind. 1990).

Me.—Wooldridge v. Wooldridge, 2008 ME 11, 940 A.2d 1082 (Me. 2008).
Ohio—PC Surveillance.Net, LLC v. Rika Group, Corp., 2012-Ohio-4569, 994 N.E.2d 843 (2012).
Pa.—Continental Bank v. Schaler, 362 Pa. Super. 610, 525 A.2d 388, 3 U.C.C. Rep. Serv. 2d 2007 (1987).
R.I.—Frias v. Muratore, 740 A.2d 340 (R.I. 1999).
S.C.—Bowers v. Bowers, 304 S.C. 65, 403 S.E.2d 127 (Ct. App. 1991).
Tenn.—NCNB Nat. Bank of North Carolina v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993).
Wyo.—In Interest of WM, 778 P.2d 1106 (Wyo. 1989).
Issues raised by counteraffidavits
If the respondent to a petition for relief from a judgment files counteraffidavits raising issues for the trial
court to determine, the petitioner has the burden of proving the right to relief by the required quantum of
competent evidence.
2 Ala.—Heard v. State, 607 So. 2d 260 (Ala. Civ. App. 1992).
N.D.—Laib v. Laib, 2008 ND 129, 751 N.W.2d 228 (N.D. 2008).
R.I.—McBurney v. Roszkowski, 875 A.2d 428 (R.I. 2005).
S.C.—BB & T v. Taylor, 369 S.C. 548, 633 S.E.2d 501 (2006).
3 Ala.—Osborn v. Roche, 813 So. 2d 811 (Ala. 2001).
Alaska—Cramer v. Wade, 985 P.2d 467 (Alaska 1999).
Me.—Boyer v. Boyer, 1999 ME 128, 736 A.2d 273 (Me. 1999).
N.D.—Roe v. Doe, 2002 ND 136, 649 N.W.2d 566 (N.D. 2002).
Utah—Jackson Const. Co., Inc. v. Marrs, 2004 UT 89, 100 P.3d 1211 (Utah 2004).
Wis.—State ex rel. R.G. v. W.M.B., 159 Wis. 2d 662, 465 N.W.2d 221 (Ct. App. 1990).
4 Md.—Hresko v. Hresko, 83 Md. App. 228, 574 A.2d 24 (1990).
Mo.—Orrock v. Crouse Realtors, Inc., 813 S.W.2d 929 (Mo. Ct. App. E.D. 1991).
Neb.—In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).
N.D.—Dvorak v. Dvorak, 2001 ND 178, 635 N.W.2d 135 (N.D. 2001).
Extrinsic fraud
Mo.—Vinson v. Vinson, 725 S.W.2d 121 (Mo. Ct. App. E.D. 1987).
Negligent misrepresentation; shifting burden described
Alaska—Harris v. Westfall, 90 P.3d 167 (Alaska 2004).
6 Ala.—Moore v. Glover, 501 So. 2d 1187 (Ala. 1986).
Ind.—Cullison v. Medley, 619 N.E.2d 937 (Ind. Ct. App. 1993).
Heavy burden
N.Y.—H & Y Realty Co. v. Baron, 193 A.D.2d 429, 597 N.Y.S.2d 343 (1st Dep't 1993).
Reason why evidence not available at trial
Mass.—Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Ass'n, 399 Mass. 886, 507
N.E.2d 717 (1987).
7 Minn.—Seiberlich v. Burlington Northern R. Co., 447 N.W.2d 896 (Minn. Ct. App. 1989).
R.I.—Reyes v. Providence Place Group, L.L.C., 853 A.2d 1242 (R.I. 2004).
S.C.—Strutton v. SDG Macerich Properties LP, 2005 SD 44, 695 N.W.2d 242 (S.D. 2005).
Tenn.—Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003).
Excusable, rather than careless
Mass.—Gath v. M/A-Com, Inc., 440 Mass. 482, 802 N.E.2d 521 (2003).
S.C.—Strutton v. SDG Macerich Properties LP, 2005 SD 44, 695 N.W.2d 242 (S.D. 2005).
Tenn.—Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003).
Double burden

Ordinarily, a party seeking relief from a judgment on the ground of mistake has the double burden of showing
diligence in making the motion after discovering its own mistake, and a satisfactory excuse for the occurrence
of that mistake.
Cal.—Billings v. Health Plan of America, 225 Cal. App. 3d 250, 275 Cal. Rptr. 80 (2d Dist. 1990).
9 N.J.—Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1994).
10 Mont.—In re Marriage of Waters, 223 Mont. 183, 724 P.2d 726 (1986).
Tenn.—Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621 (Tenn. 2000).
11 La.—Zatzkis v. Zatzkis, 632 So. 2d 307 (La. Ct. App. 4th Cir. 1993), writ denied, 640 So. 2d 1340 (La.
1994) and writ denied, 640 So. 2d 1341 (La. 1994).
12 Ind.—Jordan v. State, 549 N.E.2d 382 (Ind. Ct. App. 1990).
Ohio—Youssefi v. Youssefi, 81 Ohio App. 3d 49, 610 N.E.2d 455 (9th Dist. Summit County 1991).
13 Increasing burden as approaches limit
P.2d 809 (1995).

Works.

§ 463. Presumptions in proceeding to open or vacate judgment, 49 C.J.S. Judgments §...
Judgments
f. Evidence
§ 463. Presumptions in proceeding to open or vacate judgment

There are certain rebuttable presumptions recognized in a proceeding for relief from a judgment, such as regarding the
regularity of the previous proceedings.
In an action for relief from a judgment, there are general presumptions concerning the regularity and validity of proceedings
in the case preceding the judgment,1 the correctness of recitals in the record,2 and the court's jurisdiction.3 There is, however,
authority that a presumption of regularity will not be indulged in support of the judgment.4
All of these presumptions are only prima facie, and may be contradicted by proof,5 thus placing the burden of proof on the
party seeking relief from the judgment.6
A party seeking relief from a judgment should not be presumed to have acted diligently.7
Footnotes

§ 463. Presumptions in proceeding to open or vacate judgment, 49 C.J.S. Judgments §...
1 La.—O'Neill v. Sumrall, 481 So. 2d 157 (La. Ct. App. 4th Cir. 1985).
N.D.—Jacobson v. Brey, 72 N.D. 269, 6 N.W.2d 269 (1942).
Okla.—Davidson v. Gregory, 1989 OK 87, 780 P.2d 679 (Okla. 1989).
Tex.—Smith v. Pegram, 80 S.W.2d 354 (Tex. Civ. App. Amarillo 1935), writ refused.
2 Ark.—First Nat. Bank v. Dalsheimer, 157 Ark. 464, 248 S.W. 575 (1923).
3 Ariz.—Bell v. Bell, 44 Ariz. 520, 39 P.2d 629 (1934).
Cal.—Spahn v. Spahn, 70 Cal. App. 2d 791, 162 P.2d 53 (2d Dist. 1945).
Wash.—Brennan v. Hurt, 59 Wash. App. 315, 796 P.2d 786 (Div. 2 1990).
Utah—Jackson Const. Co., Inc. v. Marrs, 2004 UT 89, 100 P.3d 1211 (Utah 2004).
No presumption accorded courts of limited jurisdiction
Utah—State, Dept. of Social Services v. Vijil, 784 P.2d 1130 (Utah 1989).
4 Mo.—Swallows v. Holden, 723 S.W.2d 576 (Mo. Ct. App. S.D. 1987).
5 Ariz.—Bell v. Bell, 44 Ariz. 520, 39 P.2d 629 (1934).
Mo.—Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103 (1937).
Okla.—City of Clinton ex rel. Richardson v. Cornell, 1942 OK 379, 191 Okla. 600, 132 P.2d 340 (1942).
Notice of hearing
Fla.—Hammett v. Hammett, 510 So. 2d 632 (Fla. 3d DCA 1987).
6 Utah—Jackson Const. Co., Inc. v. Marrs, 2004 UT 89, 100 P.3d 1211 (Utah 2004).
As to the burden of proof, see § 462.
7 N.M.—Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154 (2000), as corrected, (Feb.
15, 2000).

Works.

§ 464. Admissibility of evidence in proceeding to open or..., 49 C.J.S. Judgments §...
Judgments
f. Evidence
§ 464. Admissibility of evidence in proceeding to open or vacate judgment

Extrinsic evidence is not permitted when determining whether a judgment is void, as the irregularity must be shown
on the record.
While a party has the right to use extrinsic evidence to show a denial of due process in support of a claim to vacate a judgment,1
extrinsic evidence is not permitted when determining whether a judgment is void, as the irregularity must be shown on the
record.2
Unsworn statements of counsel supporting a motion to vacate a judgment do not constitute evidence.3
Footnotes
1 Okla.—Vance v. Federal Nat. Mortg. Ass'n, 1999 OK 73, 988 P.2d 1275 (Okla. 1999).
2 Mo.—State ex rel. Duncan v. Mauer, 683 S.W.2d 287 (Mo. Ct. App. W.D. 1984).
Lack of jurisdiction
Okla.—Hough v. Hough, 1989 OK 65, 772 P.2d 920 (Okla. 1989).

§ 464. Admissibility of evidence in proceeding to open or..., 49 C.J.S. Judgments §...

Works.

§ 465. Weight and sufficiency of evidence in proceeding..., 49 C.J.S. Judgments §...
Judgments
f. Evidence
§ 465. Weight and sufficiency of evidence in proceeding to open or vacate judgment

West's Key Number Digest, Judgment 392(4) to 392(8)
Generally, the facts on which a request for relief from a judgment is based usually must be established by clear and
convincing evidence, although a preponderance of the evidence standard has also been recognized, and some courts give
the applicant the benefit of the doubt.
The facts on which a request for relief from a judgment is based must be established by clear, strong, and satisfactory proof,1
or, otherwise stated, clear and convincing evidence.2 This is especially the case if it is necessary to overcome an officer's return
of service.3
Under other authority, a fair preponderance of the evidence4 or some evidence5 standard is employed. Where there is no
prejudice to the opposing party, very slight evidence is required to justify relief.6 The amount of evidence has also been
characterized as an amount greater than necessary to warrant setting aside a default judgment.7
According to some authorities, the application should be denied where the evidence is evenly balanced,8 but others hold that
where the court is in doubt, the better course is to give the applicant the benefit of the doubt.9

Proofs in support of the application that are uncontradicted and unimpeached must be accepted as true.10 Unsworn allegations
of operative facts contained in a motion for relief or in a brief attached to the motion are not sufficient evidence to grant the
motion.11
Fraud.
Fraud or collusion must be clearly shown to authorize relief from a judgment on this ground,12 with the standard being
clear and convincing evidence.13 For instance, fraud on the court must be demonstrated clearly and convincingly.14 The clear
and convincing evidence standard has also been applied to requests for relief from judgments based on claims of fraudulent
concealment15 and negligent misrepresentation.16
Footnotes
1 Ark.—Graham v. Graham, 199 Ark. 165, 133 S.W.2d 627 (1939).
Colo.—McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991).
2 Ill.—In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 198 Ill. Dec. 763, 633 N.E.2d 225 (4th Dist.
1994).
N.D.—Cumber v. Cumber, 326 N.W.2d 194 (N.D. 1982).
Okla.—Furr v. Thomas, 1991 OK 93, 817 P.2d 1268 (Okla. 1991).
Or.—Matter of Marriage of Auble, 125 Or. App. 554, 866 P.2d 1239 (1993).
Pa.—Kurtz v. Allied Corp., 127 Pa. Commw. 384, 561 A.2d 1294 (1989).
Tenn.—Duncan v. Duncan, 789 S.W.2d 557 (Tenn. Ct. App. 1990).
Perjury
Ill.—People v. B.R. MacKay & Sons, Inc., 262 Ill. App. 3d 389, 198 Ill. Dec. 915, 633 N.E.2d 756 (1st
Dist. 1993).
Wyo.—Little v. Kobos By and Through Kobos, 877 P.2d 752 (Wyo. 1994).
3 Ala.—Ex parte New Home Sewing Mach. Co., 238 Ala. 159, 189 So. 874 (1939).
Tex.—Johnson v. Cole, 138 S.W.2d 910 (Tex. Civ. App. Austin 1940), writ refused.
4 La.—Alaynick v. David Reiss, M.D., 482 So. 2d 58 (La. Ct. App. 5th Cir. 1986), writ denied, 487 So. 2d
438 (La. 1986).
Excusable neglect
Ill.—Matter of Estate of Nakaerts, 125 Ill. App. 3d 862, 81 Ill. Dec. 523, 466 N.E.2d 1325 (3d Dist. 1984).
Dismissal of cause
Ill.—Kalan v. Palast, 220 Ill. App. 3d 805, 163 Ill. Dec. 224, 581 N.E.2d 175 (1st Dist. 1991).
5 Ohio—Fish v. Coffey, 33 Ohio App. 3d 129, 514 N.E.2d 896 (2d Dist. Montgomery County 1986).
6 Cal.—Mink v. Superior Court, 2 Cal. App. 4th 1338, 4 Cal. Rptr. 2d 195 (4th Dist. 1992).
7 Ariz.—City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985).
Iowa—Home Federal Sav. and Loan Ass'n of Harlan v. Robinson, 464 N.W.2d 894 (Iowa Ct. App. 1990).
Pa.—Kaufman v. Feldman, 118 Pa. Super. 435, 180 A. 101 (1935).
N.J.—Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1994).
10 Colo.—Burlington Ditch, Reservoir & Land Co. v. Fort Morgan Reservoir & Irr. Co., 59 Colo. 571, 151
P. 432 (1915).
Ill.—Robinson v. Commonwealth Edison Co., 238 Ill. App. 3d 436, 179 Ill. Dec. 783, 606 N.E.2d 615 (1st
Dist. 1992).
11 Fla.—Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838 (Fla. 2d DCA 1994).
Ohio—Dawson v. Udelsen, 37 Ohio App. 3d 141, 524 N.E.2d 525 (8th Dist. Cuyahoga County 1987).
12 Ark.—Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006).

Cal.—Cowan v. Cowan, 72 Cal. App. 2d 868, 166 P.2d 21 (2d Dist. 1946).
Ill.—In re Togneri's Estate, 296 Ill. App. 33, 15 N.E.2d 908 (1st Dist. 1938).
Ind.—In re Paternity of Tompkins, 542 N.E.2d 1009 (Ind. Ct. App. 1989).
Iowa—Watt v. Dunn, 236 Iowa 67, 17 N.W.2d 811 (1945).
Mo.—Orrock v. Crouse Realtors, Inc., 813 S.W.2d 929 (Mo. Ct. App. E.D. 1991).
Extrinsic and intrinsic fraud distinguished
The "clear, cogent, and convincing evidence" standard applies to a motion for relief from a judgment for
extrinsic fraud, but does not apply to a motion based on intrinsic fraud.
Mo.—Hewlett v. Hewlett, 845 S.W.2d 717 (Mo. Ct. App. W.D. 1993).
As to whether relief is available from intrinsic fraud, see § 403.
13 Ark.—Grand Valley Ridge, LLC v. Metropolitan Nat. Bank, 2012 Ark. 121, 388 S.W.3d 24 (2012).
Md.—Powell v. Breslin, 430 Md. 52, 59 A.3d 531 (2013).
14 Alaska—Murray v. Ledbetter, 144 P.3d 492 (Alaska 2006).
Mass.—Wojcicki v. Caragher, 447 Mass. 200, 849 N.E.2d 1258 (2006).
15 Ill.—Johnson v. Valspar Corp., 251 Ill. App. 3d 564, 190 Ill. Dec. 546, 621 N.E.2d 999 (2d Dist. 1993).
16 Alaska—Harris v. Westfall, 90 P.3d 167 (Alaska 2004).

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§ 466. Application of equitable principles in determination..., 49 C.J.S. Judgments §...
Judgments
g. Determination
§ 466. Application of equitable principles in determination

of application for opening or vacating judgment

An application for relief from a judgment is to be determined based on equitable principles.
An application for relief from a judgment appeals to the equitable powers of the court,1 is addressed to the court's discretion,2
and decided in a manner that does justice to all persons concerned.3 The issue is not the correctness of the original determination
at the time it was made, but what has since transpired to render its enforcement inequitable.4 The court must balance the interest
that justice be done against the interest in finality of judgments.5 Factors to be considered include whether a party has procured an
unconscionable advantage through the extraordinary use of court process;6 granting relief would result in hardship or prejudice
to the nonmoving party;7 the moving party has acted with due diligence8 or has a reasonable excuse for the failure to act;9 and
the moving party has a meritorious claim or defense10 and a realistic prospect of succeeding in the action.11
There is not any fixed rule that determines whether an application for relief from a judgment will be granted, but each case is
to be determined on its particular facts.12

Footnotes
1 Ill.—Krol v. Wincek, 258 Ill. App. 3d 706, 196 Ill. Dec. 856, 630 N.E.2d 1021 (1st Dist. 1994).
Minn.—Tankar Gas v. Lumbermen's Mut. Cas. Co., 215 Minn. 265, 9 N.W.2d 754, 146 A.L.R. 1223 (1943).
Pa.—Sklar v. Harleysville Ins. Co., 526 Pa. 617, 587 A.2d 1386 (1991).
Wash.—Vaughn v. Chung, 119 Wash. 2d 273, 830 P.2d 668 (1992).
2 § 467.
3 Ala.—Blackwell v. Adams, 467 So. 2d 680 (Ala. 1985).
Ill.—In re Marriage of Hoppe, 220 Ill. App. 3d 271, 162 Ill. Dec. 767, 580 N.E.2d 1186 (1st Dist. 1991).
Me.—Moulton v. Brown, 627 A.2d 521 (Me. 1993).
Md.—Harvey v. Slacum, 181 Md. 206, 29 A.2d 276 (1942).
Neb.—In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).
N.J.—Davis v. City of Newark, 19 N.J. Misc. 85, 17 A.2d 305 (Dept. of Labor 1941).
Pa.—Richey v. Gibboney, 154 Pa. Super. 1, 34 A.2d 913 (1943).
Wash.—In re Marriage of Hardt, 39 Wash. App. 493, 693 P.2d 1386 (Div. 3 1985).
4 N.J.—In re Guardianship of J.N.H., 172 N.J. 440, 799 A.2d 518 (2002).
5 Ala.—Pinkerton Sec. and Investigation Services, Inc. v. Chamblee, 961 So. 2d 97 (Ala. 2006).
Alaska—Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713 (Alaska 1988).
Fla.—Crocker Investments, Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987).
Ind.—Cullison v. Medley, 619 N.E.2d 937 (Ind. Ct. App. 1993).
Ind.—Dumont v. Davis, 992 N.E.2d 795 (Ind. Ct. App. 2013), transfer granted, opinion vacated, 5 N.E.3d
767 (Ind. 2014), vacated, 8 N.E.3d 190 (Ind. 2014).
Miss.—Kirk v. Pope, 973 So. 2d 981 (Miss. 2007).
S.C.—Raby Const., L.L.P. v. Orr, 358 S.C. 10, 594 S.E.2d 478 (2004).
6 Ill.—Brewer v. Moore, 121 Ill. App. 3d 423, 77 Ill. Dec. 57, 459 N.E.2d 1153 (1st Dist. 1984).
7 Alaska—Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713 (Alaska 1988).
Colo.—Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).
Ill.—Zee Jay, Inc. v. Illinois Ins. Guar. Fund, 194 Ill. App. 3d 1098, 142 Ill. Dec. 286, 552 N.E.2d 1027
(1st Dist. 1990).
Minn.—Armstrong v. Heckman, 409 N.W.2d 27 (Minn. Ct. App. 1987).
Pa.—Colella v. Philadelphia Housing Authority, 162 Pa. Commw. 361, 638 A.2d 499 (1994).
Wis.—Price v. Hart, 166 Wis. 2d 182, 480 N.W.2d 249 (Ct. App. 1991).
Wyo.—Largent v. Largent, 2008 WY 106, 192 P.3d 130 (Wyo. 2008).
Ill.—W.M. Mold and Tool v. DeRosa, 251 Ill. App. 3d 433, 190 Ill. Dec. 682, 622 N.E.2d 92 (2d Dist. 1993).
N.Y.—Greenwich Sav. Bank v. JAJ Carpet Mart, Inc., 126 A.D.2d 451, 510 N.Y.S.2d 594 (1st Dep't 1987).
Ill.—Smith v. Airoom, Inc., 114 Ill. 2d 209, 102 Ill. Dec. 368, 499 N.E.2d 1381 (1986).
Ill.—W.M. Mold and Tool v. DeRosa, 251 Ill. App. 3d 433, 190 Ill. Dec. 682, 622 N.E.2d 92 (2d Dist. 1993).
N.Y.—Greenwich Sav. Bank v. JAJ Carpet Mart, Inc., 126 A.D.2d 451, 510 N.Y.S.2d 594 (1st Dep't 1987).
Wyo.—Largent v. Largent, 2008 WY 106, 192 P.3d 130 (Wyo. 2008).
The meritorious claim or defense requirement is discussed in § 447.
As to the determination whether a meritorious claim or defense exists, see § 468.
11 Mass.—Gifford v. Westwood Lodge Corp., 24 Mass. App. Ct. 920, 507 N.E.2d 1057 (1987).
12 Ga.—Deen v. Baxley State Bank, 192 Ga. 300, 15 S.E.2d 194 (1941).
Ill.—In re Marriage of Gidlund, 244 Ill. App. 3d 675, 185 Ill. Dec. 181, 614 N.E.2d 315 (1st Dist. 1993).

Mont.—Rieckhoff v. Woodhull, 106 Mont. 22, 75 P.2d 56 (1937).

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§ 467. Discretion of court in determination of application to..., 49 C.J.S. Judgments §...
Judgments
g. Determination
§ 467. Discretion of court in determination of application to open or vacate judgment

The determination of an application for relief from a judgment generally rests in the court's sound legal discretion.
An application to open or vacate a judgment is generally addressed to the sound legal discretion of the court on the particular
facts of the case.1 Ordinarily its determination is conclusive and will not be disturbed, except for abuse of discretion or error
of law.2 That discretion may be almost unlimited during the 30 days immediately following the judgment.3 The discretion is
guided by equitable principles4 and the policy behind the rule of civil procedure authorizing relief from a judgment.5
Judicial discretion in deciding whether to grant relief will not be favorably exercised unless the enforcement of the judgment
would be unjust, oppressive, or inequitable as to the moving party, who must be actually or prospectively injured or prejudiced
by the judgment,6 and be benefited by the requested relief,7 or unless the motion can be granted without material injustice or
injury to the opposing party or prejudice to the intervening rights of third persons.8 On the other hand, the trial court's discretion
in ruling on a motion for relief from a judgment should be exercised in furtherance of justice, and there should be a tendency
towards granting relief in a doubtful case, so that the party may have a hearing.9
The court's discretion is not to be exercised arbitrarily, oppressively, or from mere caprice; it is a judicial discretion to be
exercised in accordance with legal and equitable principles10 or facts,11 and should be so exercised as to promote the ends of

justice.12 If the trial court applies the facts in a logical manner to the criteria set forth in the relief from judgment or orders rule,
while keeping in mind the policy favoring relief in doubtful cases, the court will be deemed to have acted within its discretion.13
An abuse of discretion occurs in this context, if the trial court's decision is clearly against the logic and effect of the facts and
circumstances before the court, or if the court has misinterpreted the law.14 To exercise its discretion in ruling on a motion for
relief from a judgment, the trial court must understand the factors and the law material to its decision, and weigh those factors
accordingly.15 The exercise of discretion must rest on competent evidence.16 It is an abuse of discretion to grant relief from
a judgment where the moving party does not show any legal ground for that relief, or does not offer an excuse for one's own
negligence or default.17 Conversely, if entitlement to the relief demanded is clearly shown, the court must grant the application,
and it is an abuse of discretion to refuse it.18
Void judgments.
While there is authority that the determination of a motion for relief from a void judgment is within the sound discretion of the
trial court,19 it has also been held that the determination whether a judgment is void, for this purpose, is a question of law20
and the question of vacating the judgment is not left to the court's discretion.21
Effect of consent.
A court hearing a motion to revise a judgment may consider the consent of the parties when making a discretionary decision,
but the court is not bound to vacate a judgment merely because all parties to a suit request that such action be taken.22
Footnotes
1 Ala.—Chapman v. Smith, 893 So. 2d 293 (Ala. 2004).
Alaska—Palmer v. Borg-Warner Corp., 838 P.2d 1243 (Alaska 1992).
Cal.—Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., 12 Cal. App. 4th 74, 15 Cal.
Rptr. 2d 585 (4th Dist. 1993).
Colo.—In re Weisbard, 25 P.3d 24 (Colo. 2001).
Conn.—Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009 (2008).
Ga.—Pope v. Pope, 277 Ga. 333, 588 S.E.2d 736 (2003).
Idaho—In re Jane Doe, I, 145 Idaho 650, 182 P.3d 707 (2008).
Ill.—Federal Kemper Life Assur. Co. v. Eichwedel, 266 Ill. App. 3d 88, 203 Ill. Dec. 207, 639 N.E.2d 246
(1st Dist. 1994).
Kan.—In re Marriage of Leedy, 279 Kan. 311, 109 P.3d 1130 (2005).
Ky.—Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002).
La.—Dismuke v. Quaynor, 637 So. 2d 555, 91 Ed. Law Rep. 1247 (La. Ct. App. 2d Cir. 1994), writ denied,
639 So. 2d 1164 (La. 1994).
Mich.—Blue Water Fabricators, Inc. v. New Apex Co., Inc., 205 Mich. App. 295, 517 N.W.2d 319 (1994).
Miss.—Palmer v. Grand Casinos of Mississippi, Inc., 744 So. 2d 745 (Miss. 1999).
Mo.—In re Marriage of Hendrix, 183 S.W.3d 582 (Mo. 2006).
Nev.—Deal v. Baines, 110 Nev. 509, 874 P.2d 775 (1994).
N.D.—State v. $33,000.00 U.S. Currency, 2008 ND 96, 748 N.W.2d 420 (N.D. 2008).
R.I.—Pleasant Management, LLC v. Carrasco, 960 A.2d 216 (R.I. 2008).
S.D.—Glover v. Krambeck, 2007 SD 11, 727 N.W.2d 801 (S.D. 2007).

S.D.—Corcoran v. McCarthy, 2010 SD 7, 778 N.W.2d 141 (S.D. 2010).

Vt.—Callahan v. Callahan, 184 Vt. 602, 2008 VT 94, 958 A.2d 673 (2008).
Wash.—Pybas v. Paolino, 73 Wash. App. 393, 869 P.2d 427 (Div. 2 1994).
W. Va.—Tolliver v. Maxey, 218 W. Va. 419, 624 S.E.2d 856 (2005).
Wyo.—MAM v. State Dept. of Family Services, 2004 WY 127, 99 P.3d 982 (Wyo. 2004).
During term
Neb.—Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).
Excusable neglect
Although a court may relieve a party from a final judgment due to excusable neglect, it has wide discretion
in determining what neglect is excusable.
Nev.—Durango Fire Protection, Inc. v. Troncoso, 120 Nev. 658, 98 P.3d 691 (2004).
2 Ala.—Chapman v. Smith, 893 So. 2d 293 (Ala. 2004).
Alaska—Palmer v. Borg-Warner Corp., 838 P.2d 1243 (Alaska 1992).
Cal.—Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., 12 Cal. App. 4th 74, 15 Cal.
Rptr. 2d 585 (4th Dist. 1993).
Colo.—In re Weisbard, 25 P.3d 24 (Colo. 2001).
Conn.—Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009 (2008).
Ga.—Pope v. Pope, 277 Ga. 333, 588 S.E.2d 736 (2003).
Idaho—In re Jane Doe, I, 145 Idaho 650, 182 P.3d 707 (2008).
Ill.—Cragin Federal Bank for Sav. v. American Nat. Bank and Trust Co. of Chicago, 262 Ill. App. 3d 115,
199 Ill. Dec. 215, 633 N.E.2d 1011 (2d Dist. 1994).
Ky.—Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002).
Miss.—Palmer v. Grand Casinos of Mississippi, Inc., 744 So. 2d 745 (Miss. 1999).
Mo.—In re Marriage of Hendrix, 183 S.W.3d 582 (Mo. 2006).
Neb.—Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).
N.D.—State v. $33,000.00 U.S. Currency, 2008 ND 96, 748 N.W.2d 420 (N.D. 2008).
Ohio—Osborne v. Osborne, 81 Ohio App. 3d 666, 611 N.E.2d 1003 (4th Dist. Meigs County 1992).
Okla.—U.S. Bank Nat. Ass'n v. Baber, 2012 OK 55, 280 P.3d 956 (Okla. 2012).
R.I.—Pleasant Management, LLC v. Carrasco, 960 A.2d 216 (R.I. 2008).
S.D.—Glover v. Krambeck, 2007 SD 11, 727 N.W.2d 801 (S.D. 2007).
Vt.—Callahan v. Callahan, 184 Vt. 602, 2008 VT 94, 958 A.2d 673 (2008).
Wash.—Pybas v. Paolino, 73 Wash. App. 393, 869 P.2d 427 (Div. 2 1994).
W. Va.—Tolliver v. Maxey, 218 W. Va. 419, 624 S.E.2d 856 (2005).
Wyo.—MAM v. State Dept. of Family Services, 2004 WY 127, 99 P.3d 982 (Wyo. 2004).
3 Okla.—Neumann v. Arrowsmith, 2007 OK 10, 164 P.3d 116 (Okla. 2007).
4 N.J.—In re Guardianship of J.N.H., 172 N.J. 440, 799 A.2d 518 (2002).
As to the application of equitable principles, see § 466.
5 W. Va.—Delapp v. Delapp, 213 W. Va. 757, 584 S.E.2d 899 (2003).
As to the nature and purpose of the rule, see § 395.
Facts and policy
A trial court will be deemed to have acted within its discretion, if it applies the facts, in a logical manner, to
the criteria for granting relief from a judgment, while keeping in mind the policy favoring relief in doubtful
cases.
Idaho—Waller v. State, Dept. of Health and Welfare, 146 Idaho 234, 192 P.3d 1058 (2008).
6 N.J.—La Bell v. Quasdorf, 116 N.J.L. 368, 184 A. 750 (N.J. Sup. Ct. 1936).
N.Y.—Adair v. Adair, 206 A.D. 394, 201 N.Y.S. 398 (2d Dep't 1923).
N.C.—Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315 (1925).
Pa.—Koenig v. Currans Restaurant & Baking Co., 306 Pa. 345, 159 A. 553 (1932).

7 N.J.—West Jersey Trust Co. v. Bigham, 118 N.J.L. 160, 191 A. 743 (N.J. Ct. Err. & App. 1937).
8 N.J.—West Jersey Trust Co. v. Bigham, 118 N.J.L. 160, 191 A. 743 (N.J. Ct. Err. & App. 1937).
9 Utah—Lund v. Brown, 2000 UT 75, 11 P.3d 277 (Utah 2000).
10 Ariz.—Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (Ct. App. Div. 1 1993) (rejected on other
grounds by, Logerquist v. Danforth, 188 Ariz. 16, 932 P.2d 281 (Ct. App. Div. 2 1996)).
Cal.—Mink v. Superior Court, 2 Cal. App. 4th 1338, 4 Cal. Rptr. 2d 195 (4th Dist. 1992).
Conn.—Ducci Elec. Contractors, Inc. v. Department of Transp., 28 Conn. App. 175, 611 A.2d 891 (1992).
S.D.—Williams Services v. Sherman, 492 N.W.2d 122 (S.D. 1992).
Wis.—Pettygrove by Scholl v. Pettygrove, 132 Wis. 2d 456, 393 N.W.2d 116 (Ct. App. 1986).
Not unbridled
Ala.—Pinkerton Sec. and Investigation Services, Inc. v. Chamblee, 961 So. 2d 97 (Ala. 2006).
11 Ariz.—Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (Ct. App. Div. 1 1993) (rejected on other
Okla.—Donley v. Donley, 1939 OK 181, 184 Okla. 567, 89 P.2d 312 (1939).
S.D.—Williams Services v. Sherman, 492 N.W.2d 122 (S.D. 1992).
W. Va.—State ex rel. Moore v. Canterbury, 181 W. Va. 389, 382 S.E.2d 583 (1989).
13 Idaho—Profits Plus Capital Management, LLC v. Podesta, 156 Idaho 873, 332 P.3d 785 (2014).
14 Ind.—State v. Willits, 773 N.E.2d 808 (Ind. 2002).
15 Me.—In re Estate of Shapiro, 1999 ME 25, 723 A.2d 886 (Me. 1999).
Factors enumerated
The relevant factors for considering whether a trial court has abused its discretion in denying a motion for
relief from a judgment include the desirability that the final judgment should not be lightly disturbed; that
the procedure for relief from a judgment is not a substitute for an appeal; that the rule of civil procedure
should be liberally construed to do substantial justice; whether the movant had a fair opportunity to present
a claim or defense at trial; and whether there are intervening equities that make it inequitable to grant relief.
N.D.—Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, 609 N.W.2d 90, 143 Ed. Law Rep. 623
(N.D. 2000).
16 Nev.—Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 849 P.2d 305 (1993) (holding modified on other
grounds by, Willard v. Berry-Hinckley Industries, 469 P.3d 176, 136 Nev. Adv. Op. No. 53 (Nev. 2020)).
Pa.—Tradesmens Nat. Bank & Trust Co. v. Lewis, 154 Pa. Super. 17, 34 A.2d 818 (1943).
17 Or.—Matter of Marriage of Auble, 125 Or. App. 554, 866 P.2d 1239 (1993).
Claim not previously raised
Because opening a judgment is a matter of discretion, a trial court is not required to open a judgment to
consider a claim not previously raised.
Conn.—Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008).
18 Alaska—Princiotta v. Municipality of Anchorage, 785 P.2d 559 (Alaska 1990).
Ariz.—Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (Ct. App. Div. 1 1993) (rejected on other
Ind.—Larkins v. State, 622 N.E.2d 1299 (Ind. Ct. App. 1993).
S.C.—Thompson v. Hammond, 299 S.C. 116, 382 S.E.2d 900 (1989).
19 Nev.—Bianchi v. Bank of America, N.A., 124 Nev. 472, 186 P.3d 890 (2008).
20 Alaska—Ray v. Ray, 115 P.3d 573 (Alaska 2005).
21 Ala.—Image Auto, Inc. v. Mike Kelley Enterprises, Inc., 823 So. 2d 655 (Ala. 2001).
N.D.—Bender v. Beverly Anne, Inc., 2002 ND 146, 651 N.W.2d 642 (N.D. 2002).
22 Md.—Chapman v. Kamara, 356 Md. 426, 739 A.2d 387 (1999).

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§ 468. Determination of grounds and existence of..., 49 C.J.S. Judgments §...
Judgments
g. Determination
§ 468. Determination of grounds and existence of meritorious

claim or defense in proceeding to open or vacate judgment

A court must determine the existence and sufficiency of alleged grounds for relief, and then if grounds are found, whether
a meritorious cause of action or defense exists.
Relief from a judgment should not be granted unless it is found that one of the grounds for that action exists.1 It has generally
been held that the court should2 or may3 limit its consideration to those grounds alleged in the application, but it has been held
that the application may be granted where sufficient grounds appear of record, although not raised by the party seeking relief.4
If grounds for opening the judgment are established, and a meritorious cause of action or defense is required,5 the court must
find that a meritorious claim or defense exists.6 The denial of a motion to reopen a judgment is proper when the movant fails
to show how the result would be different if the judgment were reopened.7
Footnotes

§ 468. Determination of grounds and existence of..., 49 C.J.S. Judgments §...
1 N.Y.—Duffield v. Franklin Lumber Co., 231 A.D. 510, 248 N.Y.S. 5 (1st Dep't 1931).
Ohio—Washington v. Levinson, 66 Ohio App. 461, 20 Ohio Op. 427, 33 Ohio L. Abs. 579, 35 N.E.2d 161
(1st Dist. Hamilton County 1941).
2 Ga.—White v. Hutcheson, 41 Ga. App. 602, 154 S.E. 157 (1930).
Minn.—Wilcox v. Hedwall, 186 Minn. 504, 243 N.W. 709 (1932).
N.D.—Lee v. Luckasen, 52 N.D. 934, 204 N.W. 831 (1925).
Pa.—Keystone Nat. Bank of Manheim, now to Use of Balmer v. Deamer, 144 Pa. Super. 52, 18 A.2d 540
(1941).
3 Ill.—In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 198 Ill. Dec. 763, 633 N.E.2d 225 (4th Dist.
1994).
4 Ill.—Knight v. Knight, 165 Ill. App. 3d 403, 116 Ill. Dec. 516, 519 N.E.2d 106 (3d Dist. 1988).
Ind.—State ex rel. Huppert v. Paschke, 637 N.E.2d 150 (Ind. Ct. App. 1994).
5 § 447.
6 Ill.—People ex rel. McGraw v. Mogilles, 136 Ill. App. 3d 67, 90 Ill. Dec. 831, 482 N.E.2d 1114 (2d Dist.
1985).
Mo.—Crow v. Crow-Humphrey, 335 Mo. 636, 73 S.W.2d 807 (1934).
Neb.—Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98, 89 A.L.R. 932 (1933).
N.C.—Garrett v. Trent, 216 N.C. 162, 4 S.E.2d 319 (1939).
Ohio—Minetti v. Einhorn, 36 Ohio App. 310, 8 Ohio L. Abs. 508, 173 N.E. 243 (1st Dist. Hamilton County
1930).
Pa.—Fidelity Title & Trust Co. v. Garrett, 327 Pa. 305, 194 A. 398 (1937).
7 N.D.—Laib v. Laib, 2008 ND 129, 751 N.W.2d 228 (N.D. 2008).

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§ 469. Findings in proceeding to open or vacate judgment, 49 C.J.S. Judgments § 469
Judgments
g. Determination
§ 469. Findings in proceeding to open or vacate judgment

There is a division of opinion on whether a court is required to make findings of fact and conclusions of law when passing
on an application for relief from a judgment.
A court's ruling on a motion for relief from a judgment must be based on adequate findings of fact and on the law.1 However,
there is some older authority that findings are not required,2 although it has been said that the court should file an opinion stating
its findings of facts and the grounds of its decision,3 or that the parties must request that the court make findings, and that except
where separate findings are required, an order vacating a judgment is an implied finding of the facts necessary to support it.4
Similarly, a denial of the application is an implied finding that grounds for that relief do not exist.5
Footnotes
2 Wash.—Frieze v. Powell, 79 Wash. 483, 140 P. 690 (1914).
3 Pa.—Haines v. Elfman, 235 Pa. 341, 84 A. 349 (1912).

§ 469. Findings in proceeding to open or vacate judgment, 49 C.J.S. Judgments § 469
4 Kan.—Moore v. Zeman, 109 Kan. 566, 200 P. 270 (1921).

5 Cal.—Chavez v. Scully, 69 Cal. App. 633, 232 P. 165 (2d Dist. 1924).

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§ 470. Order opening or vacating judgment, 49 C.J.S. Judgments § 470
Judgments
g. Determination
§ 470. Order opening or vacating judgment

General rules with regard to orders apply to orders opening or vacating judgments.
An order opening or vacating a judgment must comply with the requirements for orders generally,1 and also with any special
statutory requirement.2
The judgment affected must be described with sufficient accuracy to be identified, but mere inaccuracy of description does not
invalidate the order.3 There is authority that the order does not need to recite the grounds for granting the application.4
The order must be entered of record.5 A party must be given notice of the order prior to its entry.6
While merely entering a second judgment does not, itself, vacate a prior judgment in the same action,7 it was elsewhere held
that it is not necessary that the second judgment expressly state that the first judgment is vacated.8

§ 470. Order opening or vacating judgment, 49 C.J.S. Judgments § 470
Footnotes
1 Ky.—Lovill v. Hatfield, 207 Ky. 142, 268 S.W. 807 (1925).
2 N.D.—Harris v. Hessin, 30 N.D. 33, 151 N.W. 4 (1915).
3 Mont.—Morehouse v. Bynum, 51 Mont. 289, 152 P. 477 (1915).
4 Mo.—Spickard v. McNabb, 180 S.W.2d 611 (Mo. Ct. App. 1944).
5 Tex.—Witty v. Rose, 148 S.W.2d 962 (Tex. Civ. App. El Paso 1941), writ dismissed.
Order written on motion
An order written on the face of the motion to set aside a judgment constitutes a separate order from the
judgment, and is not effective until filed in the clerk's office.
Ala.—Phillips v. Randolph, 828 So. 2d 269 (Ala. 2002).
6 Ill.—City of Chicago v. American Nat. Bank and Trust Co. of Chicago, 171 Ill. App. 3d 680, 121 Ill. Dec.
608, 525 N.E.2d 915 (1st Dist. 1988).
7 Okla.—Jackson v. Jackson, 2002 OK 25, 45 P.3d 418 (Okla. 2002).
8 Tex.—Owens-Corning Fiberglas Corp. v. Wasiak, 883 S.W.2d 402 (Tex. App. Austin 1994).

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§ 471. Operation and effect of order opening or vacating..., 49 C.J.S. Judgments §...
Judgments
g. Determination
§ 471. Operation and effect of order opening or vacating judgment

An order granting a motion to set aside a judgment is usually not a final order.
An order granting a motion to set aside an order or judgment is usually not itself a final judgment.1 However, there is authority
that a decision to grant a motion for relief from a judgment in favor of a moving party is a final order.2
Footnotes
1 Colo.—Broyles v. Fort Lyon Canal Co., 695 P.2d 1136 (Colo. 1985).
Fla.—Albano v. Albano, 579 So. 2d 757 (Fla. 5th DCA 1991).
2 Ohio—Natl. City Bank v. Reat Corp., 64 Ohio App. 3d 212, 580 N.E.2d 1147 (8th Dist. Cuyahoga County
1989).
As to the appealability of an order opening or vacating a judgment, order, or decree, see C.J.S., Appeal and
Error § 195.

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Judgments
g. Determination
§ 472. Operation and effect of order opening or vacating judgment—On successive application

A second application for relief from a judgment founded on the same grounds or on facts that were known or should
have been known to the applicant at the time of making the first application generally will not be considered, although
the first ruling may be reopened on showing new facts or on the same grounds for opening a judgment.
Successive motions for relief from a judgment brought on the same grounds are impermissible, because they are generally
considered motions to reconsider the original ruling and are not authorized by the rule of civil procedure.1 While the decision
on a motion to vacate or set aside a judgment is not res judicata in the strict sense,2 it has been held that a successive motion
raising the same grounds is barred by res judicata,3 and, as a general matter, a second application for the same purpose, based
on the same grounds as the first, will not be entertained.4 After the trial court denies the motion, it no longer has jurisdiction
over the case, and the aggrieved party's only remedy is to appeal.5 However, a second motion may be considered by the court
if it presents facts that reveal that proper grounds, although known or discoverable, were not alleged in the first motion because
of fraud, mistake, surprise, or excusable neglect.6
A new motion should always be entertained when based on new grounds, not covered by the former motion and not then known
or available to the party.7 Where, the second application is for different relief, as, for instance, where the former motion was

to vacate a judgment as a nullity, and the second is to open that judgment and let the applicant defend, the denial of the first
motion is not a bar of the second.8
Footnotes
1 Ala.—Pinkerton Sec. and Investigation Services, Inc. v. Chamblee, 961 So. 2d 97 (Ala. 2006).
2 Conn.—Santoro v. Kleinberger, 115 Conn. 631, 163 A. 107 (1932).
3 Ga.—Revels v. Kilgo, 157 Ga. 39, 121 S.E. 209 (1923).
Ohio—Harris v. Anderson, 109 Ohio St. 3d 101, 2006-Ohio-1934, 846 N.E.2d 43 (2006).
4 Fla.—State, Dept. of Transp. v. Bailey, 603 So. 2d 1384 (Fla. 1st DCA 1992).
Ill.—Sears v. Sears, 85 Ill. 2d 253, 52 Ill. Dec. 608, 422 N.E.2d 610 (1981).
Mass.—Old Colony Trust Co. v. Pepper (State Report Title: Pepper v. Old Colony Trust Co.), 268 Mass.
467, 167 N.E. 656 (1929).
5 Ala.—Ex parte Allstate Life Ins. Co., 741 So. 2d 1066 (Ala. 1999).
Ill.—Emcee Corp. v. George, 293 Ill. App. 240, 12 N.E.2d 333 (1st Dist. 1937).
Mont.—Ford Motor Credit Co. v. Wellnitz, 2008 MT 314, 346 Mont. 61, 194 P.3d 630 (2008).
6 Ind.—Fulton v. Van Slyke, 447 N.E.2d 628 (Ind. Ct. App. 1983).
As to vacating an order vacating a judgment, see § 473.
7 S.D.—Olson v. Advance Rumely Thresher Co., 43 S.D. 90, 178 N.W. 141 (1920).
8 Pa.—Albert M. Greenfield & Co. v. Roberts, 135 Pa. Super. 328, 5 A.2d 642 (1939).

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§ 473. Vacation of order opening or vacating judgment, 49 C.J.S. Judgments § 473
Judgments
g. Determination
§ 473. Vacation of order opening or vacating judgment

An order opening or vacating a judgment may itself be vacated.
An order opening or vacating a judgment may itself be vacated or rescinded,1 such as where the order was made without
jurisdiction,2 or was obtained irregularly or fraudulently,3 or because it was erroneous.4
The effect of vacating such an order is to restore the original judgment.5 The court may order that the judgment be reinstated
as of the date it was originally entered.6
Footnotes
1 Kan.—Mayall v. American Well Works Co., 149 Kan. 781, 89 P.2d 846 (1939).
Ky.—Com. v. Partin, 223 Ky. 405, 3 S.W.2d 779 (1928).
2 Fla.—State v. Wright, 107 Fla. 178, 145 So. 598 (1932).
3 Wash.—Hays v. Mercantile Inv. Co., 73 Wash. 586, 132 P. 406 (1913).
4 Mo.—Wilson v. Teale, 88 S.W.2d 422 (Mo. Ct. App. 1935).

§ 473. Vacation of order opening or vacating judgment, 49 C.J.S. Judgments § 473
5 Ky.—Vanderpool v. Stewart, 212 Ky. 373, 279 S.W. 645 (1926).

6 Neb.—Shafer v. Wilsonville Elevator Co., 121 Neb. 280, 237 N.W. 155 (1931).

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§ 474. Effect of opening or vacating judgment, 49 C.J.S. Judgments § 474
Judgments
g. Determination
§ 474. Effect of opening or vacating judgment

West's Key Number Digest, Judgment 399, 400
Where a judgment is vacated, it is as though a judgment had never been entered, but a judgment that has been opened
generally remains operative as security until the termination of the litigation.
Where a judgment is vacated by a valid order or judgment, it is entirely destroyed, and the rights of the parties are left as though
a judgment had never been entered.1 Further steps may not be legally taken to enforce the vacated judgment.2 The original
judgment is not final3 nor susceptible to appeal, and may not become a final judgment from which an appeal may be taken,4
without a subsequent order confirming it as originally entered or as modified.5 The action, however, is left still pending and
undetermined, and further proceedings may be taken.6 The case stands again for trial or for such other disposition as may be
appropriate to the situation.7 For instance, the court may render a second judgment.8 After a postjudgment motion is granted
for one party, the opponent has the right under some rules to file the opponent's own postjudgment motions.9
Although it has been held that the effect of opening the judgment is to leave the case standing as though no judgment had been
rendered,10 it is generally held that a judgment that is opened, as distinguished from one that is vacated, does not lose its status
as a judgment.11 It does not determine any rights of the parties in the action, but subsists only for the purpose of security,12 its
lien remaining unimpaired.13 A judgment that is opened, as opposed to vacated, is voidable.14

The order opening the judgment, rather than a general practice act, controls the subsequent pleadings in the action.15 If a
judgment is opened generally, the burden is on the plaintiff to prove the cause of action,16 including one not previously raised.17
A judgment based on an earlier judgment that was vacated is not itself automatically nullified, but the later judgment may be
set aside, in appropriate proceedings.18
On third parties.
Where the judgment vacated is void, the rights of an intervening purchaser of the property affected will not be protected.19
However, if the judgment is voidable but not void, its vacation will not divest the title of third persons acquired under it in
good faith for a valuable consideration.20
Footnotes
1 Ariz.—Nielson v. Patterson, 204 Ariz. 530, 65 P.3d 911 (2003).
Ark.—Loyd v. City of Russellville, 287 Ark. 95, 696 S.W.2d 741 (1985).
Fla.—Bane v. Bane, 775 So. 2d 938 (Fla. 2000).
Ill.—Flavell v. Ripley, 247 Ill. App. 3d 842, 187 Ill. Dec. 621, 617 N.E.2d 1342 (2d Dist. 1993).
Kan.—Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887 (1943).
Ky.—Morris v. Morris, 225 Ky. 823, 10 S.W.2d 277 (1928).
Mo.—State ex rel. Office of Public Counsel v. Public Service Com'n of Missouri, 266 S.W.3d 842 (Mo.
2008).
N.J.—McKay v. Estate of McKay, 205 N.J. Super. 609, 501 A.2d 610 (Law Div. 1984).
Pa.—Bergen v. Lit Bros., 354 Pa. 535, 47 A.2d 671 (1946).
Tex.—Ferguson v. Naylor, 860 S.W.2d 123 (Tex. App. Amarillo 1993), writ denied, (Oct. 20, 1993).
Wash.—Matter of Marriage of Leslie, 112 Wash. 2d 612, 772 P.2d 1013 (1989).
No judgment in effect subject to modification
Conn.—Foster Development Associates v. Talar, 26 Conn. App. 300, 600 A.2d 1044 (1991).
2 Kan.—Standard Life Ass'n v. Merrill, 147 Kan. 121, 75 P.2d 825 (1938).
3 Conn.—RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006).
4 Tex.—Ferguson v. Naylor, 860 S.W.2d 123 (Tex. App. Amarillo 1993), writ denied, (Oct. 20, 1993).
5 Va.—Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 561 S.E.2d 734 (2002).
6 Kan.—Standard Life Ass'n v. Merrill, 147 Kan. 121, 75 P.2d 825 (1938).
Mo.—State ex rel. Office of Public Counsel v. Public Service Com'n of Missouri, 266 S.W.3d 842 (Mo.
2008).
N.J.—Dorman v. Usbe Bldg. & Loan Ass'n, 115 N.J.L. 337, 180 A. 413 (N.J. Sup. Ct. 1935).
7 Conn.—Simpson v. Young Men's Christian Ass'n of Bridgeport, 118 Conn. 414, 172 A. 855 (1934).
8 N.M.—Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780 (1982).
9 Ala.—Woodall v. Woodall, 506 So. 2d 1005 (Ala. Civ. App. 1987).
10 Conn.—Sasso v. Aleshin, 197 Conn. 87, 495 A.2d 1066 (1985).
11 Ohio—Washington v. Levinson, 66 Ohio App. 461, 20 Ohio Op. 427, 33 Ohio L. Abs. 579, 35 N.E.2d 161
(1st Dist. Hamilton County 1941).
Pa.—Markofski v. Yanks, 297 Pa. 74, 146 A. 569 (1929).
Distinction
There is a substantive distinction between opening a judgment to modify or to alter its incidental terms,
leaving the essence of the original judgment intact, and opening a judgment to set it aside, in which case the
original judgment necessarily has been rendered void and any appeal from it would be rendered moot.

Conn.—RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006).
12 N.Y.—Pomeroy v. Hocking Valley Ry. Co., 187 A.D. 164, 175 N.Y.S. 489 (1st Dep't 1919).
13 Ill.—City of Park Ridge v. Murphy, 258 Ill. 365, 101 N.E. 524 (1913).
14 Pa.—Continental Bank v. Frank, 343 Pa. Super. 477, 495 A.2d 565 (1985).
15 Pa.—Cassler v. Cassler, 294 Pa. 197, 144 A. 88 (1928).
16 Conn.—Padaigis v. Kane, 125 Conn. 727, 4 A.2d 335 (1939).
17 Pa.—Austen v. Marzolf, 307 Pa. 232, 161 A. 72 (1932).
18 Ohio—State ex rel. Denton v. Bedinghaus, 98 Ohio St. 3d 298, 2003-Ohio-861, 784 N.E.2d 99 (2003).
19 Kan.—Bryner v. Fernetti, 141 Kan. 446, 41 P.2d 712 (1935).
20 N.J.—Ostrom v. Ferris, 99 N.J. Eq. 551, 134 A. 305 (Ch. 1926), aff'd, 103 N.J. Eq. 22, 141 A. 920 (Ct. Err.
& App. 1928) and aff'd, 103 N.J. Eq. 22, 141 A. 920 (Ct. Err. & App. 1928).

Works.

§ 475. Relief awarded on application to open or vacate..., 49 C.J.S. Judgments §...
Judgments
h. Relief Awarded
§ 475. Relief awarded on application to open or vacate judgment, generally

On an application for relief from a judgment, the court may generally grant such relief as is appropriate under the
circumstances, but generally may not grant further affirmative relief, and must also set aside any jury verdict.
On an application for relief from a judgment, the court may award such relief as is appropriate under the circumstances.1 It has
been held that the court, on vacating a judgment, may set aside conclusions of law.2 However, it has also been stated that the only
relief available under a rule of civil procedure is merely to set aside the judgment, and that the rule may not be used to impose
affirmative relief in addition to that already contained in the prior judgment.3 There is authority that on vacating a judgment,
the court does not have the power to make new findings inconsistent with those already made,4 and that it may not proceed to
enter a judgment in the applicant's favor5 where the parties have the right to a jury trial.6 A judgment regularly entered on a
verdict may not be vacated unless the verdict is also set aside.7 Relief from the judgment notwithstanding the verdict, rather than
reinstatement of the verdict, is an appropriate remedy when relief from the judgment was based on newly discovered evidence,
where disputed issues of material fact exist with regard to the credibility of witnesses and documentary evidence.8
Either on opening or vacating the judgment, the relief granted may include setting aside an execution or an execution sale.9

§ 475. Relief awarded on application to open or vacate..., 49 C.J.S. Judgments §...
Footnotes
1 Cal.—Berning v. Colodny & Colodny, 103 Cal. App. 188, 284 P. 496 (1st Dist. 1930).
Vacate or suspend judgment
On a finding that the movant is entitled to relief from a prior judgment, the court ordinarily is to vacate or
suspend the judgment pending a trial on merits of issues raised.
Ohio—State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 67 Ohio St. 3d 134,
616 N.E.2d 869 (1993).
2 Ind.—Tri-City Electric Service Co. v. Jarvis, 206 Ind. 5, 185 N.E. 136 (1933).
3 N.D.—Bender v. Beverly Anne, Inc., 2002 ND 146, 651 N.W.2d 642 (N.D. 2002).
4 Cal.—Herz v. Hereford, 88 Cal. App. 290, 263 P. 382 (2d Dist. 1928).
N.Y.—Citizens' Nat. Bank of East Northport v. Caldwell, 233 A.D. 875, 251 N.Y.S. 319 (2d Dep't 1931).
5 Tex.—Marmion v. Herrin Transp. Co., 127 S.W.2d 558 (Tex. Civ. App. Beaumont 1939), writ refused.
6 Tex.—Schaffer v. Speckels, 62 S.W.2d 85 (Tex. Comm'n App. 1933).
7 Ga.—Dabney v. Benteen, 35 Ga. App. 203, 132 S.E. 916 (1926).
8 Mass.—Cahaly v. Benistar Property Exchange Trust Co., Inc., 451 Mass. 343, 885 N.E.2d 800 (2008).
9 Or.—Anderson v. Guenther, 144 Or. 446, 25 P.2d 146 (1933).

Works.

§ 476. Partial vacation of judgment, 49 C.J.S. Judgments § 476
Judgments
h. Relief Awarded
§ 476. Partial vacation of judgment

A court having the power to vacate a judgment entirely may vacate it only in part, where justice so requires, such as
where the parts are separable or the judgment affects several persons.
A court with the power to vacate a judgment entirely may vacate it only in part, where justice so requires.1 Where the objection
is to a separable part of the judgment, the court should grant relief only from the objectionable part.2
A judgment against several persons may be vacated with respect to one or more of them, and allowed to stand against the
others,3 except where the judgment is entire and indivisible,4 or because of the interdependence of rights or other special factors,
it would be prejudicial and inequitable to let the judgment stand against the other defendants.5
Footnotes
1 Ark.—Taylor v. O'Kane, 185 Ark. 782, 49 S.W.2d 400 (1932).
Cal.—People by Webb ex rel. Bray v. Barnes City, 105 Cal. App. 618, 288 P. 442 (2d Dist. 1930).
Conn.—Persky v. Puglisi, 101 Conn. 658, 127 A. 351 (1925).

§ 476. Partial vacation of judgment, 49 C.J.S. Judgments § 476
Tex.—Kern v. Smith, 164 S.W.2d 193 (Tex. Civ. App. Texarkana 1942), writ refused w.o.m., (Oct. 14, 1942).
Wis.—In re Commitment of Morford, 2004 WI 5, 268 Wis. 2d 300, 674 N.W.2d 349 (2004).
2 Cal.—People by Webb ex rel. Bray v. Barnes City, 105 Cal. App. 618, 288 P. 442 (2d Dist. 1930).
Ga.—George A. Rheman Co. v. May, 71 Ga. App. 651, 31 S.E.2d 738 (1944).
Ky.—Phillips v. Green, 288 Ky. 202, 155 S.W.2d 841 (1941).
Okla.—Reed v. Scott, 1991 OK 113, 820 P.2d 445, 20 A.L.R.5th 913 (Okla. 1991).
Tex.—Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (Comm'n App. 1941).
Void in separable part
Idaho—McGrew v. McGrew, 139 Idaho 551, 82 P.3d 833 (2003).
Neb.—Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).
3 Cal.—Michel v. Williams, 13 Cal. App. 2d 198, 56 P.2d 546 (2d Dist. 1936).
Ill.—Meldoc Properties v. Prezell, 158 Ill. App. 3d 212, 110 Ill. Dec. 684, 511 N.E.2d 861 (2d Dist. 1987).
Okla.—Galeener v. Reynolds, 1937 OK 368, 180 Okla. 200, 69 P.2d 49 (1937).
Tex.—Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (Comm'n App. 1941).
4 Ill.—Fredrich v. Wolf, 383 Ill. 638, 50 N.E.2d 755 (1943).
Ohio—Beachler v. Ford, 77 Ohio App. 41, 32 Ohio Op. 317, 42 Ohio L. Abs. 609, 60 N.E.2d 330 (2d Dist.
Darke County 1945).
Tex.—McClaren Rubber Co. v. Williams Auto Supply Co. of Big Spring, 81 S.W.2d 255 (Tex. Civ. App.
Eastland 1934).
5 Defendant who agreed to judgment believing that other would be bound
Ill.—Meldoc Properties v. Prezell, 158 Ill. App. 3d 212, 110 Ill. Dec. 684, 511 N.E.2d 861 (2d Dist. 1987).

Works.

§ 477. Terms and conditions imposed on opening or..., 49 C.J.S. Judgments §...
Judgments
h. Relief Awarded
§ 477. Terms and conditions imposed on opening or vacating judgment

West's Key Number Digest, Judgment 396, 402
A court may generally impose reasonable terms and conditions on opening or vacating a judgment.
Where relief from a judgment is discretionary,1 it is within the court's sound discretion to impose, as a condition to granting the
application, such terms as may be just and reasonable,2 so long as the conditions the court imposes relate to the reasons for the
relief.3 Thus, in granting relief from a judgment, the court may impose such terms as the posting of a bond,4 or the payment of
attorney's fees5 or costs.6 However, the circumstances may be such that it would be an abuse of discretion to impose terms.7
If the judgment is void for lack of jurisdiction, terms may not be imposed as a condition to granting relief.8 In any event, the
court's discretion with respect to imposing terms must be exercised in a reasonable manner.9
Footnotes
1 § 467.
2 Md.—Pioneer Oil Heat v. Brown, 179 Md. 155, 16 A.2d 880 (1940).
Mass.—Currier v. Malden Redevelopment Authority, 16 Mass. App. Ct. 906, 449 N.E.2d 679 (1983).

§ 477. Terms and conditions imposed on opening or..., 49 C.J.S. Judgments §...
Ohio—Pokrass v. All Sec., Inc., 1 Ohio App. 3d 47, 439 N.E.2d 422 (10th Dist. Franklin County 1980).
Wash.—Knapp v. S.L. Savidge, 32 Wash. App. 754, 649 P.2d 175 (Div. 1 1982).
As to terms and conditions on granting relief from a judgment by confession, see § 498.
Terms and conditions on opening default judgment are discussed in § 603.
3 Mo.—Cella v. Cella, 41 S.W.3d 629 (Mo. Ct. App. E.D. 2001).
4 Ga.—Tucker Station, Ltd. v. Chalet I, Inc., 203 Ga. App. 383, 417 S.E.2d 40 (1992).
5 Ga.—Tucker Station, Ltd. v. Chalet I, Inc., 203 Ga. App. 383, 417 S.E.2d 40 (1992).
Ohio—Pokrass v. All Sec., Inc., 1 Ohio App. 3d 47, 439 N.E.2d 422 (10th Dist. Franklin County 1980).
6 Ohio—Pokrass v. All Sec., Inc., 1 Ohio App. 3d 47, 439 N.E.2d 422 (10th Dist. Franklin County 1980).
7 Colo.—Sidwell v. First Nat. Bank, 76 Colo. 547, 233 P. 153 (1925).
8 Colo.—Sidwell v. First Nat. Bank, 76 Colo. 547, 233 P. 153 (1925).
N.Y.—Hitchcock v. Pyramid Centers of Empire State Co., 151 A.D.2d 837, 542 N.Y.S.2d 813 (3d Dep't
1989).
9 Tex.—Continental Oil Co. v. Henderson, 180 S.W.2d 998 (Tex. Civ. App. Fort Worth 1944), writ refused
w.o.m., (Oct. 11, 1944).

Works.

§ 478. Restitution of benefits received under vacated judgment, 49 C.J.S. Judgments §...
Judgments
h. Relief Awarded
§ 478. Restitution of benefits received under vacated judgment

A party who has received benefits under a judgment that is vacated should be required to make restitution.
Where a final judgment has been absolutely vacated, after it has been paid, or satisfied by execution or by possession of the
property in controversy, the party benefiting from the judgment should be ordered to make restitution.1 Thus, an order setting
aside a judgment for a plaintiff at the plaintiff's request should be conditioned on remitting payments made on the judgment.2
An attorney who has shared in the proceeds of a vacated judgment may be ordered to make restitution.3
Footnotes
1 Cal.—Brown v. Howard, 86 Cal. App. 532, 261 P. 732 (2d Dist. 1927).
Fla.—State ex rel. Revell v. City of Wauchula, 138 Fla. 184, 189 So. 247 (1939).
N.J.—Westfield Trust Co. v. Court of Common Pleas of Morris County, 116 N.J.L. 191, 183 A. 165 (N.J.
Ct. Err. & App. 1936).
Wyo.—Healy v. Wostenberg, 47 Wyo. 375, 38 P.2d 325 (1934).

§ 478. Restitution of benefits received under vacated judgment, 49 C.J.S. Judgments §...
2 Mich.—Denison v. Crowley, Milner & Co., 279 Mich. 211, 271 N.W. 735 (1937).
Tender of payment sufficient
Mass.—Parrell v. Keenan, 389 Mass. 809, 452 N.E.2d 506 (1983).
3 Mo.—Warren v. Order of Railway Conductors of America, 199 Mo. App. 200, 201 S.W. 368 (1918).

Works.

Research References, 49 C.J.S. Judgments XI C Refs.
49 C.J.S. Judgments XI C Refs.
Judgments
Topic Summary | Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Judgments, Orders, and Decrees
West's A.L.R. Digest, Judgment 336 to 402

Works.

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§ 435. Time limits for moving to vacate void judgments, 49 C.J.S.

49 C.J.S. Judgments § 435

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

4. Proceedings and Relief

b. Time for Application

§ 435. Time limits for moving to vacate void judgments

Topic Summary | References | Correlation Table

West's Key Number Digest

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

5 Ala.—Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).

12 Ala.—Boykin v. Law, 946 So. 2d 838 (Ala. 2006).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

Fla.—McGee v. McGee, 156 Fla. 346, 22 So. 2d 788 (1945).

14 Okla.—Bailey v. Campbell, 1991 OK 67, 862 P.2d 461 (Okla. 1991).

16 Alaska—Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

20 Colo.—People in Interest of N.N.U., 819 P.2d 1107 (Colo. App. 1991).

End of Document © 2021 Thomson Reuters. No claim to original U.S.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

49 C.J.S. Judgments § 436

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

4. Proceedings and Relief

b. Time for Application

Topic Summary | References | Correlation Table

West's Key Number Digest

Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

3 Ariz.—Vazquez v. Dreyfus, 34 Ariz. 184, 269 P. 80 (1928).

End of Document © 2021 Thomson Reuters. No claim to original U.S.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

49 C.J.S. Judgments § 437

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

4. Proceedings and Relief

b. Time for Application

Topic Summary | References | Correlation Table

West's Key Number Digest

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

10 W. Va.—White v. Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992).

18 Ind.—Jordan v. State, 549 N.E.2d 382 (Ind. Ct. App. 1990).

19 N.D.—Kopp v. Kopp, 2001 ND 41, 622 N.W.2d 726 (N.D. 2001).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

End of Document © 2021 Thomson Reuters. No claim to original U.S.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

49 C.J.S. Judgments § 438

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

4. Proceedings and Relief

b. Time for Application

Topic Summary | References | Correlation Table

West's Key Number Digest

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.