Cardwell v. Sabichi

59 Cal. 490 | Cal. | 1881

Thornton, J.:

There is but one question of importance in this case. It concerns a judgment rendered by the Justice’s Court of Los Angeles Township, county of same name, in the action of Perry et al. v. Louis Wolfskill. Plaintiff claims under this judgment, and defendants contend that it is void for a want of jurisdiction of the party defendant, for the reason that there was no service of summons and complaint on him, as required by law. As evidence of such service, the plaintiff in the Court below offered the following return, which was indorsed on the summons:

“ I hereby certify that I have served the within summons by delivering a copy thereof, together with true copy of complaint, personally, at the Township and County of Los Angeles, this twenty-fifth day of April, 1879.

“Fee, $2. W. Bettis, Constable.

“By J. H. Morthcraet, Deputy.”

The above was objected to by defendants when the papers, including the judgment in the case of Perry et al. v. Wolfskill, were offered by plaintiff, on the ground that it did not prove service on Wolfskill. The Court overruled the objection, and defendants excepted.

It is true, that Justices’ Courts are inferior Courts of liraited jurisdiction, and their jurisdiction must affirmatively appear, or their judgments will be absolutely void. (Lowe v. Alexander, 15 Cal. 301, 302; Rowley v. Howard, 23 id. 404.) Ho intendments can be indulged in favor of the jurisdiction of such Courts. (Lowe v. Alexander, ut supra. See Peacock v. Bell, 1 Saund. 74; Brittain v. Kinnaird, 1 B. & B. 432; Dempster v. Purnell, 3 Man. & G. 375; 1 Smith’s Lead. Cas., notes to Crepps v. Dunden, *816-818, etc.; Broom’s Leg. Maxims, *413, 914.) But within those rules which are well settled and fixed in our jurisprudence, we think the service is proved by the above return. (Code Civ. Proc., §§ 849, 411, 415; Pol. C., §§ 4315, 4176.)

In Legg v. Stillman et al., 2 Cowen, 418, which was certiorari to a Justice’s Court, the suit was by summons in the Court below, and the return on the summons was as follows: “Personally served May 14, 1822. Fees, $0 13. Thomas McKnight, Const.” The return was held sufficient. In the case cited, the objection to the judgment was made in a collateral action, as in the case before us for decision. The judgment was adjudged valid. Our views in this case are in accord with the ruling in Legg v. Stillman, which ruling meets our approval. In the case cited, the time and manner of service were shown, and in this case, the time, manner, and place of service appear. In neither case is defendant mentioned, either by name or by being designated as defendant.

As to the point, that the return does not show that the copy of the complaint served was the copy of the complaint in the action of Perry et al. v. Wolfskill, we have to say, that we do not think it tenable. The return afforded some evidence that it was such copy, and we can not say that the proof in this regard was not sufficient to authorize the Justice to render a judgment by default. (See Code Civ. Proc., § 871; Drake v. Duvenick, 45 Cal. 463.)

We have examined the cases cited by appellant’s counsel as to the points discussed herein. The cases from the Mississippi reports (Merritt v. White, 37 Miss. 438, and Woodliffe v. Connor, 45 id. 552) were decided on a statute different from ours as to the return. (See Code of Mississippi, §§ 1563, 1564.) The provisions of this Code are stated in Merritt v. White, above cited.

Belingall v. Gear, 3 Scam. (Ill.) 575, was a case for the foreclosure of a mortgage by scire facias. The provisions of the statute of Illinois as to the service and return of the writ of scire facias in such action differ greatly from our statute as to return of summons in civil actions, as will be readily seen by a comparison. (See the case above cited, where the provisions of the statute are stated.) Besides the question was made on appeal in the case cited above, and not on a collateral attack. On appeal, the question of regularity is before the Court, and there is a great difference between an entire lack of jurisdiction and irregularity in obtaining jurisdiction. (Drake v. Duvenick, 45 Cal. 463.) Tullis v. Scott, 38 Tex. 537, and Board v. Board, 4 Abb. (N. Y.) 295, were appeals from judgments in the action or proceeding; and the same observations as to irregularity made above, apply. In Litchfield v. Burwell, 5 How. Pr. (N. Y.) 341, the question arose on a motion for judgment in the action, where the question was as to regularity of service.

We do not see that the cross-complaint of defendant Sabichi sets up anything which would go to defeat the. claim of the plaintiff, admitting all the facts stated therein to be true.

The judgment and order denying a new trial are affirmed.

Sharpstein and Myrick, JJ., concurred.