¶1 ON PETITION POR REHEARING
¶2 We held in the original'opinion herein that the judgment of July 23rd, 1919 could not be opened pursuant to motion and notice thereof served upon the attorney of record, for the reason that the proceedings to open said judgment disclose that they were not based on any irregularity contemplated in subdivision 3 of section 5923, W. C. S. 1920, and that whatever relief might have been granted was under subdivision 7 of the same section, in which case a petition must be filed and a summons must be issued and served as in the commencement of an action, which was not done in this case. Counsel for respondent argue that the court, when it entered its orders of June 2 and 18, 1920, opening up said judgment and proceeding to hear the case anew, had jurisdiction to open up and vacate judgments; that jurisdiction is the power to decide, rightly or wrongly; that in this case the court determined that the case before it was one involving an irregularity contemplated by subdivision 3 aforesaid, and that this decision is final in a collateral attack, as in this case, though such decision was wrong. The argument is specious but unsound. The line between jurisdiction and want thereof, is, it is true, sometimes shadowy. But the court cannot create its own jurisdiction. There must in any event always be some foundation upon which to rear a superstructure. The court cannot create the foundation by judicial fiat. It cannot declare white to be black, or black to be white; it cannot declare that a summons has *476 been issued, when the facts are otherwise; it cannot say that a petition has been filed, when that is not in fact true. "While the court must necessarily decide in the first instance whether it has jurisdiction or not, its decision that it has, when none in fact exists, and that fact appears of record, is of no avail. If that were not so, no judgment could ever be attacked collaterally, no matter how glaringly the face of the record would show such want of jurisdiction. The power of a court to open up judgments after the term, is, except in cases when a common law remedy may be applicable, derived from the statute. That statute (sec. 5923 W. C. S. 1920 etc.,), gives the court power to open up a judgment for irregularity when a motion is filed and notice thereof is given. It gives the court power to open up judgments for accidents, mistake etc. only after a petition is filed and summons is issued and served. Counsel would evidently have us believe that in no case is a petition or summons necessary, (when the proceeding is attacked collaterally) if only the court decides that it is not the kind of a ease that requires them. That surely cannot be true, and we do not believe that any court would so hold. In the ease at bar the face of the proceedings show that the motion aforesaid was not based upon an irregularity as contemplated by subdivision 3 of section 5923, W. C. S. 1920 aforesaid, and the trial court’s decision to the contrary could not change that fact.
¶3 The judgment of July 23, 1919 accordingly could not be opened pursuant to motion and notice of the motion served upon the attorney of record. If that judgment could be opened at all, it should have been done by taking the steps, mentioned in section 5927, which provide for the filing of a petition and for the issuance of a summons to be served as in the commencement of an action. Counsel argue and cite many cases to the effect that a defective declaration or complaint does not deprive the court of jurisdiction to act in and determine the matter. "We need not decide as to whether or not the motion in this case might have been con *477 sidered a petition sufficient to give the court jurisdiction of the subject matter. But no summons was issued and none was served upon Boulter. Not even notice of the motion referred to was served upon him, and he made no appearance to the proceedings. Hence even though the court had jurisdiction of the subject matter, it had no jurisdiction of the person of Boulter — a fact which counsel has entirely overlooked and ignored in his argument. Hence the orders of June 2 and June 18, 1920 must necessarily be void for want of jurisdiction of the person.
¶4 It would not do to hold that the notice of the motion served upon the attorney in the former case, is equivalent to the service of summons upon Boulter himself. We think it entirely probable that if the statute had been complied with and a summons been properly issued and served upon Boulter, he would have appeared and have sought to protect his rights. From aught that appears, he had no knowledge whatever of the proceedings seeking to set the judgment of July 23, 1919 aside. The attorney of record may have considered that his services were no longer necessary or desired and in the absence of a statute, in any event, we cannot hold that notice to him is binding upon a party to the action, and the equivalent of the service of summons upon the latter. The proceedings sought to deprive Boulter of valuable rights, of probably substantially all of the property that he had. Certainly, prudence would have suggested that he was entitled to the notice required by law. Counsel, who then acted in the case (not the present counsel for respondent), had notice of the motion aforesaid served upon the Bock Springs National Bank, a co-party of Boul-ter’s, but for some unknown reason even that notice was not deemed necessary or desirable to be served upon Boul-ter. However that may be, the latter was, by the orders of June 2 and June 18, 1920, deprived of his property without the notice required by law, and so far as the record indicates, without any knowledge of these proceedings. And *478 to- deprive him of his property in that manner would be the grossest injustice and not in accordance with due process of law.
¶5 The petition for rehearing herein must accordingly be denied, and it is so ordered.