judicial sale, a cross-complaint by such former owner attacking the validity of the order or judgment under which the sale was made is a direct and not a collateral attack on such order or judgment: Christofferson v. Pfennig, 16 Wash. 491, 48 Pac. 264; Krutz v. Isaacs, 25 Wash. 566, 66 Pac. 141; Northwestern etc. Bank v. Ridpath, 29 Wash. 687, 70 Pac.

139.

We do not mean by this that mere errors or irregularities not going to the jurisdiction of the court may be inquired into under such a cross-complaint, for these can only be corrected on a direct appeal, or in a case such as this by an appropriate proceeding instituted by the insane person within. 377 one year after the disability is removed. But the jurisdiction of the court to make the order under which the sale was made may be inquired into, and the service of notice of the application for the appointment of a guardian upon the insane person, and upon the person having the care, custody and control of such insane person, as required by the act of March 16, 1903, Laws of 1903, page 242, is jurisdictional, and if no such notice was served all subsequent proceedings are null and void: State v. Superior Court, 41 Wash. 450, 83 Pac. 726.

This, in our opinion, is the only jurisdictional question raised by the cross-complaint or the offer of proof. The question of the sale of a homestead does not arise in this case. While it was held in Curry v. Wilson, 45 Wash. 19, 87 Pac. 1065, that there was no authority in law for the sale or mortgage of the homestead of an insane person in this state prior to the passage of the homestead act of March 30, 1895, Laws of 1895, page 109-and there is no pretense that the provisions of that act were complied with here yet in the case of Whitworth v. McKee, 32 Wash. 83, 72 Pac. 1046, it was held that there is no homestead right in property acquired since the passage of the act of 1895, supra, unless the declaration of homestead is executed and filed as therein provided. The property in controversy was acquired since the passage of that act, and the appellants concede that no declaration of homestead was executed or filed. This disposes of all of the assignments of error, and for the error in excluding testimony tending to show that no notice of the application for the appointment of a guardian was given or served, the judgment is reversed and a new trial ordered.

If on a retrial it should appear that no such notice was given or served, the court will take an accounting between the parties and enter judgment quieting title in the appellants

on such terms as may be equitable. If it shall appear that 378 such notice was in fact given, judgment will go for the respondents.

Hadley, C. J., Fullerton, Dunbar, Mount, Crow and Root, JJ., concur.

When an Application is Made for the Appointment of a Guardian for an incompetent person, he must be served with notice of the time and place of hearing, in order to give the court jurisdiction. It is doubtful whether the presence of the incompetent at the hearing can supply the statutory requirement that he should be served with the notice: McGee v. Hayes, 127 Cal. 536, 78 Am. St. Rep. 57.

VAN HORN v. VAN HORN.

[48 Wash. 388, 93 Pac. 670.]

ALIMONY—Enforcement in Another State.-An order awarding temporary alimony and suit money, which is subject to modifica tion in the discretion of the court, cannot be enforced by action is another state. (p. 942.)

William B. Allison, for the appellant.

Bamford A. Robb, for the respondent.

388 RUDKIN, J. This action was instituted in the court below on an interlocutory order of the superior court of Alameda county, in the state of California, awarding temporary alimony and suit money to the plaintiff herein, in an action for divorce pending in that court. A demurrer interposed to the amended complaint was sustained, and the plaintiff electing to stand on her complaint and refusing to plead further, a 389 judgment of dismissal was entered. From that judgment the present appeal is prosecuted.

The order on which the action is based was made under section 137 of the Civil Code of California, which reads as follows: "When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or prosecute or defend the action."

The authorities very generally agree that an action will not lie in another court or in the courts of another state on an order or judgment such as this: Baugh v. Baugh, 4 Bibb. (Ky.) 556; Ledyard v. Brown, 39 Tex. 402; Vine v. Vine,

21 R. I. 190, 42 Atl. 871; Cutler v. Cutler, 88 Ill. App. 464; Webb v. Buckelew, 82 N. Y. 555; Lynde v. Lynde, 162 N. Y. 405, 76 Am. St. Rep. 332, 56 N. E. 979, 48 L. R. A. 679, 181 U. S. 183, 21 Sup. Ct. Rep. 555, 45 L. ed. 810; Freund v. Freund (N. J.), 63 Atl. 756; Israel v. Israel, 148 Fed. 576; Hunt v. Monroe, 32 Utah, 428, 91 Pac. 269, 1 L. R. A., N. S., 249; Sistare v. Sistare, 80 Conn. 1, ante, p. 102, 66 Atl. 772; Geisler v. Geisler, 30 Ky. Law. Rep. 430, 98 S. W. 1023; Barclay v. Barclay, 184 Ill. 375, 56 N. E. 636, 51 L. R. A. 351.

The reason for the rule is thus stated in Israel v. Israel, 148 Fed. 576: "The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. . . . . The peculiar character of the obligation is such that it is always subject to modification by the court in which the decree was entered according to the varying circumstances of the parties, and no other court could undertake to administer the relief to which the parties are entitled except that having jurisdiction in the original suit. An attempt to do so by such other court would bring about a conflict of authority and a condition of chaos with reference to questions of this character, because no other court would have before it the facts with reference to such 390 change in conditions and as to such original right of the parties': Barclay v. Barclay, 184 Ill. 375, 56 N. E. 636, 51 L. R. A. 351.

Without questioning the rule announced in these cases, counsel for the appellant earnestly insists that the order in question is a final one under the decisions of the supreme court of the state of California, and must be so considered here. In support of this contention he cites: Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456, 635, 8 Pac. 709; Hite v. Hite, 124 Cal. 389, 71 Am. St. Rep. 82, 57 Pac. 227, 45 L. R. A. 793; Baker v. Baker, 136 Cal. 302, 68 Pac. 971.

While the supreme court of California holds in the cases cited that an order such as this is a final order from which an appeal will lie under its statutes, it does not hold, and has not held to our knowledge, that such an order is not subject to change or modification in the discretion of the court in which it was made, and this is the principal objection to permitting an action to be maintained on such an order in another jurisdiction. It is a significant fact that while the supreme court of California cites Lochnane v. Lochnane, 78

Ky. 467, and Blake v. Blake, 80 Ill. 523, in support of the right of appeal in the Sharon case, the courts of both of these states hold that an action will not lie on such an order: Cutler v. Cutler, 88 Ill. App. 464, and Geisler v. Geisler, 30 Ky. Law. Rep. 430, 98 S. W. 1023.

Finding no error in the record, the judgment is affirmed.

Hadley, C. J., Fullerton, Mount, Crow and Dunbar, JJ.,

concur.

A Decree for the Payment of Future Alimony or Maintenance which is inconclusive in its character by reason of the reservation to the court which made it of the unrestricted right to change or annul it at discretion, and which is not enforceable in the state of its origin otherwise than by special processes exclusive of execution, and of judgment thereon and execution, is not one creating such a debt of record as will entitle it to or justify extraterritorial enforcement: Sistare v. Sistare, 80 Conn. 1, ante, p. 102, and see authorities cited in the cross-reference note thereto.

NICHOLS v. DOAK.

[48 Wash. 457, 93 Pac. 919.]

BANKRUPTCY-Conclusiveness of Recital of Fraud in Judgment. Recitals in a judgment that recovery against the defendant was because of fraud in obtaining goods and failing to return them is conclusive on that point in subsequent proceedings by him to restrain an execution sale, on the ground that the judgment has been satisfied by his discharge in bankruptcy. (p. 944.)

BANKRUPTCY-Judgment of Fraud in Obtaining Goods.— Where a judgment against a bankrupt recites that recovery was because of his fraud in obtaining goods, and orders a recovery of damages on account of the fraud, it will be presumed on collateral attack that the court found that a return of the property was impossible or impracticable, and, the judgment will not be held defective in form because not in the alternative. (p. 944.)

BANKRUPTCY.-A Judgment for Damages Because of Fraud in obtaining goods is not affected by bankruptcy proceedings, and becomes a lien on the property thereafter acquired by the bankrupt. (p. 945.)

James Dawson and R. E. Porterfield, for the appellant.

Samuel R. Stern, for the respondents.

458 HADLEY C. J. This is an action to enjoin the sheriff of Spokane county from selling certain real estate under execution. In two previous causes in the superior court of Spokane county, in each of which the plaintiff in this action

was the defendant, judgment were rendered against him as such defendant. Thereafter he was adjudged a bankrupt, and was discharged as such. Following the date of his said discharge he inherited from his mother the real estate above mentioned. The judgments have never been paid. The holders of them in no way participated in the bankruptcy proceedings, and unless the discharge in bankruptcy had the legal effect to satisfy the judgments, they are upon their face liens upon the real estate. Proceeding upon the theory that the judgments are liens, the holders of them caused executions to issue, and directed the sheriff to levy upon said land and sell it to satisfy the judgments. This the sheriff was about to do when the judgment debtor brought actions to enjoin the sale, and incidentally to have the judgments canceled. The two actions were heard together, with the same testimony applying to each, and the court denied the relief asked in each case. Judgment was entered dismissing the actions, and the plaintiff has appealed from both judg

ments.

The two cases will be treated on appeal as a consolidated cause, as they were treated by the trial court. Appellant contends that his discharge in bankruptcy had the effect to satisfy the judgments and that they do not now constitute enforceable liens. Respondents, upon the other hand, maintain that the judgments were taken against appellant because of his fraud in obtaining certain property, and that by the terms 459 of section 17 of the bankruptcy act, appellant's discharge in bankruptcy did not release him from judgments or liabilities of that character. Appellant assigns as error the refusal of the court to permit him, at the trial of this cause, to introduce testimony to show that he did not fraudulently obtain and retain the goods for which said former suits were brought. The judgments themselves were in evidence, and they recited that the recovery against appellant was because of fraud in obtaining goods and the failure to return them, as alleged in the complaint. We think these recitals were conclusive against appellant. The judgment had stood for years unattacked by appeal or otherwise. To have admitted the testimony offered would have allowed the contradiction of the terms of the judgments, and would have permitted in this action a trial of the former actions upon their merits. Such would have amounted to a collateral attack on the judgments. The relief sought was the restraint of execution sales, and in order to effect that end, it was sought by the testimony to impeach the judgments which supported the executions in