¶1At the December term, 1866, of Clay Superior Court, the plaintiff obtained a judgment against the defendants for the sum of $4,019 79, principal, and $1,861 15, interest. At the September term of said Superior Court, in 1869, the Court passed the following order, after stating the naines of the parties and reciting the judgment obtained at December term, 1866 : “ It appearing to the Court that the consideration upon which the above judgment was founded was a note given for slaves, it is ordered that the same be set aside and forever annulled and made void.” At the September term of the same Court, in 1872, the plaintiff made a motion to set aside and vacate the order and judgment made at the September term, 1869, setting aside and annulling the judgment obtained at the December term, 1866, on the ground that the Court had no jurisdiction to render such vacating judgment, and because said judgment shows upon its face, that it was rendered on a ground wholly unknown to the law as a cause for *268vacating said judgment, which latter motion the Court overruled, and the plaintiff excepted. The judgment rendered by the Court, at September term, 1869, setting aside and annulling the judgment of 1866, on the ground that it was founded on a note given for slaves, was a mere usurpation of power by the Court, without any authority of law to award such a judgment for that cause, and may be declared a nullity collaterally under the provisions of the Code without any direct proceeding to reverse it, for the reasons stated in the case of Tison, administrator, etc., vs. McAffee, et al. The princijoles of law applicable to the judgment of dismissal in that case are also applicable to the judgment of 1869 in this casé, and should control it. The judgment of 1869 has no foundation for its support by any law of the land for the cause for which it was rendered, as is apparent on the face thereof, and cannot stand any more than a house could stand without any foundation for its support. It is quite apparent from the several provisions of the Code in relation to setting aside judgments, that parties should not be without a remedy, although they might not have excepted to the same within thirty days after the same were rendered. If that had been intended as the only remedy for parties to have got rid of judgments for any of the causes specified therein, the provisions of the Code would not have been enacted. I know of no principle of the common law, or of any municipal law, or moral law, or any other law which would have authorized the Court below to deprive the plaintiff of his vested right to-recover the amount of his judgment obtained in 1866, for the cause apparent on the face of the judgment of 1869, and to give the same to the defendants, unless it is that old primitive law, the simple plan recognized by Rob Roy when he plundered on the Scottish border, to-wit: “ That they should take who have the power.” “And they should keep who can.”
¶2Let the judgment of the Court below be reversed.