Thus, if there were any irregularities in the Virginia action which violated provisions of the Soldiers' and Sailors' Civil Relief Act, appellant should have moved to have the judgment set aside in the Virginia court. Since he did not do so, the trial court was correct in recognizing the judgment as valid. Allen v. Allen, 30 Cal.2d 433, 182 P.2d 551 (Cal. 1947); Morris Plan Bank of Georgia v. Hadsall, 202 Ga. 52, 41 S.E.2d 881 (1947); Powell v. Smith, 201 Ga. 788, 41 S.E.2d 312 (1947); Hudson v. Hightower, 307 Ky. 295, 210 S.W.2d 933 (1948); Thompson v. Lowman, 108 Ohio App. 453, 155 N.E.2d 258 (1958); Mims Bros. v. N.A. James, Tex.Civ.App., 174 S.W.2d 276 (1943). However, appellant attacks the jurisdiction of the Virginia court, asserting that there could have been no service of process on him while he was on active duty.
A judgment is void if there is a lack of jurisdiction over the defendant or the subject matter. See Commonwealth v. Marcum, 873 S.W.2d 207, 211 (Ky. 1994); Thomas v. Morrow, 361 S.W.2d 105, 106 (Ky. 1962); Hudson v. Hightower, 307 Ky. 295, 298, 210 S.W.2d 933, 934 (1948).
Although the issue has apparently not been directly addressed by published state appellate authority in New York, it has been consistently held that the filing of the required affidavit is not jurisdictional, and that a default judgment is not void but merely voidable upon application of the serviceman, contrary to Civil Court's determination herein. ( SeePNC Bank, N.A. v. Kemenash, 335 NJ Super 124, 761 A2d 118 [2000]; United States v. Hampshire, 892 F Supp 1327, 1332 [D Kan 1995]; Desjarlais v. Gilman, 143 Vt 154, 463 A2d 234 [1983]; Sarfaty v. Sarfaty, 534 F Supp 701, 704 [ED Pa 1982]; Rish Equip. Co. v. Reasonover, 1979 WL 207085 [Ohio App 1979]; Courtney v. Warner, 290 So 2d 101 [Fla App 1974]; Davidson v. General Fin. Corp., 295 F Supp 878, 881 [ND Ga 1968]; Haller v. Walczak, 347 Mich 292, 79 NW2d 622; Sanchez v. Sobieski, 3 Ill App 2d 479, 122 NE2d 602; Hudson v. Hightower, 307 Ky 295, 210 SW2d 933; Allen v. Allen, 30 Cal 2d 433, 182 P2d 551; Bristow v. Pagano, 238 Iowa 1075, 29 NW2d 423; Snapp v. Scott, 196 Okla 658, 167 P2d 870; Lyle v. Haskins, 24 Wash 2d 883, 168 P2d 797; Mims Bros. v. N.A. James, Inc., 174 SW2d 276 [Tex Civ App 1943]; Alzugaray v. Onzurez, 25 NM 662, 187 P 549; Howie Min. Co. v. McGary, 256 F 38 [ND W Va 1919]; State v. District Ct., 55 Mont 602, 179 P 831; Eureka Homestead Socy. v. Clark, 145 La 917, 918, 83 So 190; see generally Boone v. Lightner, 319 US 561; American Law of Veterans ยง 894, at 706 [1946].)
The point that the judgment is void because there was no proof of indivisibility cannot be sustained. Even before the loosening up of the strictness of observance of procedural matters where an infant's interest in land is involved by the modification of Sec. 489 of the Civil Code of Practice by the Act of 1942, amended in 1944, it was held proof of indivisibility need not be made where the court could ordinarily presume and take judicial notice that property could not be divided without materially impairing the value of the several interests therein as authorized by Sec. 490, subd. 2, of the Code of Practice. Pollard v. Hamilton, 179 Ky. 284, 200 S.W. 621. So much the more is that true under the present terms of Sub-section 10 of Sec. 489 even though Sub-section 5 still provides that the allegations of a pleading shall not be taken as confessed. Hudson v. Hightower, 307 Ky. 295, 210 S.W.2d 933. In any event, the failure to take proof would make the judgment merely erroneous and not void. Ohio Oil Co. v. West, 284 Ky. 796, 145 S.W.2d 1035.