¶1delivered the opinion of the court.
¶2There is no doubt but that the judgment in this case was irregular, and it was properly set aside or vacated. We do not deem it necessary to determine the question raised on the argument of the cause, whether the judgment was such as would justify the party in suing out an execution upon it. As the judgment was irregular, and as it was vacated, though after a writ upon it had been executed, the question for our consideration is, whether it was a justification to the party who sued it out, although it was executed before the judgment was vacated.
¶3The case mostly relied upon by the defendant Bircher is that of The Bank of Missouri v. Franciscus, 15 Mo. 303. We do not conceive that this case sustains the defendant. The judgment there was a regular one. It was not even erroneous. It was against a bankrupt. After the judgment had been rendered and execution levied, the bankrupt, whose application for a discharge was still pending and who had not yet obtained his certificate, applied to the court for relief on the ground that, while his application for a discharge was pending, he was not liable to execution for debts contracted before he sought the benefit of the bankrupt law. On this the judgment was set aside and the execution stayed. He afterwards brought an action for trespass against the Bank of Missouri for having this execution levied. Now inasmuch as the bankrupt had failed to make a proper defence in the action against him for debt, or had failed to take the proper steps to arrest the proceedings against him before there was a judgment, this.court held that the judgment against him was not only regular, but was not even erroneous, and therefore would give the order setting it aside no retroactive effect. The case before us is different. The judgment was irregular, *140and was properly set aside; and if after the judgment is vacated there is no redress for those who are injured by it, most grievous wrongs must be submitted to without the hope of a remedy.
¶4While the case of the Bank of Missouri v. Franciscus furnishes no support to the conduct of Bircher the defendant, it recognizes the principle that when an irregular judgment is vacated, it will no longer give protection to the party who has put it in force. In matters of this sort the party is always liable for the conduct of his attorney. (Barker v. Braham, 3 Wil. 368.) The case of Turner v. Felgate, 1 Levinz, 95, was where a man had a judgment and execution executed, and afterwards the judgment was vacated for being unduly obtained and restitution awarded; and afterwards the defendant in the first action brought trespass against the plaintiff for taking the goods; and it was adjudged that it will lay against the party; for by the vacating of the judgment, it is as though it had never been, and it is not like a judgment reversed for error; and, it is added, “ note, this action was against the party and not against the sheriff who had the king’s writ to warrant him.” This is an old case, and has always been followed both in England and the United States. In such cases the process, being regular on its face, is a protection to the officer who executes it, unless he makes himself liable by uniting himself with the defendant in his defence.
¶5The courts have a discretion in setting [aside] judgments and process, and will so exercise it as to do justice between the parties by imposing such conditions and restrictions as the circumstances warrant. Cases have occurred in which the courts have refused to set aside a judgment unless there was a stipulation that the party asking it would stipulate not to bring an action. Reversed and remanded.