"If it be necessary to resort to extrinsic evidence to show the invalidity of a judgment, the motion to vacate must be presented within three years following the rendition of the judgment or order, as provided for in section 817, C. O. S. 1921." B-R Electric Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919. Error from District Court, Creek County; Thos. S. Harris, Judge.
Same โ Motion to Vacate Required Within Three Years Where Extrinsic Evidence Necessary. If it be necessary to resort to extrinsic evidence to show the invalidity of a judgment, the motion to vacate must be presented within three years following the rendition of the judgment or order as provided for in section 817, Comp. St. 1921. B-R Electric Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919. 3. Divorce โ Attack on Judgment for Defective Service by Publication not Shown on Face of Record โ Statute.
An order which vacates a judgment is analogous to, or the functional equivalent of, one that grants a new trial. It is hence reviewable by right. Lamme v. Skelton, 106 Okla. 214, 233 P. 705; Pennsylvania Co. v. Potter, 108 Okla. 49, 233 P. 700; B-R Electric Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919, 920 [1925]; Halliburton et al. v. Williams, 166 Okla. 248, 27 P.2d 360; Busby v. Eaves, 205 Okla. 346, 237 P.2d 445, 448 [1951]. An order granting a partial new trial is appealable to the same extent as one which allows a complete retrial.
"The provision of the statute that a void judgment may be vacated at any time on motion applies only when the invalidity of the judgment appears on the face of the judgment roll." In the last cited case, the Court quoted from B-R Electric Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919, as follows: "If it be necessary to resort to extrinsic evidence to show the invalidity of a judgment, the motion to vacate must be presented within three years following the rendition of the judgment or order, as provided for in section 817, Comp.St. 1921 [12 O.S. 1951 ยง 1038[ 12-1038]."
It is settled in this state and very generally elsewhere that a judgment is void only when a jurisdictional defect appears on the face of the record. Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Adams v. Carson, 165 Okla. 161, 25 P.2d 653: B-R Electric Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919; Samuels v. Granite Savings Bank Trust Co., 150 Okla. 174, 1 P.2d 145. The judgment for which vacation is authorized by section 563, O. S. 1931, is one void on its face.
Edwards v. Smith, 42 Okla. 544, 142 P. 302; Pettis v. Johnston, 78 Okla. 277, 190 P. 681. In B. R. Electric Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919, this court held that if it were necessary to resort to extrinsic evidence to show that the judgment is invalid, the proceedings to vacate must be commenced within three years after the rendition of the judgment, and in Steiner v. Smith, 115 Okla. 205, 242 P. 207, this court, in reversing the trial court, held that a judgment rendered at a former term of the court could not be set aside on motion unless the judgment roll disclosed its invalidity, and in Smith v. Page, 117 Okla. 223, 246 P. 217, this court reiterated the rule laid down in Edwards v. Smith, supra, and held that a judgment is not void for want of jurisdiction unless its invalidity appears on the face of the record. The record shows that more than twelve years elapsed after appellant reached her majority before she took any steps to vacate the judgment complained of; that she lived in the county where the judgment was rendered a goodly portion of the time; that she knew of the death of Virgil Tinker. His estate was sett