124 Cal. 69 | Cal. | 1899
This appeal is taken from an order of the court below entered the fifteenth day of February, 1897, denying the motions of the appellants, said defendant Soule, and said Burt, a tenant in possession of said premises under the mortgagor Soule, to vacate and set aside a judgment and decree of foreclosure made and entered in said court on the 6th of April, 1896. The motion to vacate and set aside said judgment, as stated in the notice for the same, is based upon the ground that it “was and is absolutely void, for the reason that the said court never acquired jurisdiction over the premises described in the so-called decree, or any part thereof, or over the person of the defendant A. C. Soule in said action, who was the owner
There is nothing in the judgment-roll to contradict or impeach the recitals contained in the decree, and therefore the facts recited are deemed to be true, and they show that the court had jurisdiction of the subject matter and of the parties. “The judgment of a court of general jurisdiction is conclusively presumed to be correct, unless the record itself of the judgment shows that the court did not have jurisdiction of the subject matter of the action, or of the person of the defendant. When the court has such jurisdiction, its record speaks absolute verity, because it is the court’s record of its own acts; and such jurisdiction will be conclusively presumed, unless the contrary appears upon the face of the record.” (Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491.)
“The maxim of the law is, that the judgment of a court of general jurisdiction imports absolute verity, and its truth cannot be questioned either by showing otherwise than by the record itself that the court had no jurisdiction, or that the jurisdiction was fraudulently procured. Both upon the merits of
" '“A judgment void upon its face is one that appears to be void by inspection of the judgment-roll. The mere absence from the roll of the paper—for example, the return of the officer showing a service of the summons—cannot invalidate the judgment when the judgment itself recites the fact that the defendant was duly served with process.” (People v. Harrison, 84 Cal. 607.) To the same effect is Freeman on Judgments, section 130.
■' But it is claimed on the part of these appellants that the judgment in question is void for the reason that it is a second judgment or decree, a former one having been set aside by the court, and it is claimed that said order of the court setting aside the former judgment was void, and that said former judgment still remains in full force; hence the one in question is void. From the bill of exceptions it appears that the action was brought by the plaintiff to foreclose a mortgage covering the premises- in question, made and executed on the nineteenth day of June, 1893, by the defendants A. C. Soule and Grace N. Soule to the plaintiff, to secure their promissory note of even date for the sum of five thousand three hundred and fifty dollars. The defendant and cross-complainant, Thomas Fanning, held a second mortgage executed by the defendant A. 0. Soule, dated June 22, 1893, to secure a promissory note of even date therewith, in the sum of five hundred dollars, and by the recitals in the last decree, as already shown, Fanning was brought in as defendant on the plaintiff’s suit under the fictitious name of John Doe. The first decree was entered June 28, 1895, and it appears therefrom that Fanning, as the holder of the second mortgage, was entirely ignored, and the decree and order of sale was in behalf of the plaintiff only. On October 8, 1895, appears a minute order reciting that upon motion of the plaintiff’s attorney, "and it appearing to the court that the judgment heretofore entered herein was inadvertently entered, it is hereby ordered by the court that said judgment be and the same is hereby set aside.” Thereupon, November 5, 1895, the defend
“Circumstances may have arisen wherein the trial court would have been justified under the law in setting aside the first findings and judgment, and in filing the second findings and judgment, and, with no showing to the contrary, we must assume that such circumstances did arise.” (Paige v. Roeding, 96 Cal. 391.)
“It is within the jurisdiction of the superior court to vacate a judgment entered by it by other proceedings than a motion for a new trial. If it has committed error in thus vacating the judgment, it can be corrected on a direct appeal, but on a collateral attack the order will be deemed to have been properly made.” (Storke v. Storke, 111 Cal. 514. See, also, Calton etc. Co. v. Swartz, 99 Cal. 278.)
The decree in question not being void upon its face, and no fraud or imposition upon the court being shown so as to bring
The defendant and cross-complainant Fanning was' not served with notice, or brought in on the motion to vacate and set aside the final decree in which his junior mortgage is foreclosed, and his rights, therefore, are unaffected.
There is no merit in the appeal.
Order affirmed.
Garoutte, J., and Harrison, J., concurred.
