Drake v. Duvenick, 45 Cal. 455

Drake v. Duvenick

45 Cal. 455 | Cal. | 1873

By the Court, Belcher, J.:

This is an action of ejectment to recover the possession of land in the City of San Francisco. Both parties claim title to the demanded premises under one Thomas Dorland; the defendants, under a Sheriff’s deed made in 1857, in pursuance of a decree of foreclosure and sale thereunder, and the plaintiff under a conveyance from Dorland, made in 1867.

At the trial the defendants offered the judgment roll in the foreclosure case, and the plaintiff objected to its being received in evidence on the ground that no judgment or de*462cree in the case was ever rendered by the Court, and the Clerk had no power to enter the judgment by default; and on the further ground that it affirmatively appeared therefrom that Borland was not served with process and did not appear in the action, and the Court did not acquire jurisdiction of his person, and the judgment was, therefore, void as to him. The Court overruled the objection and admitted the record in evidence. Judgment was rendered in favor of defendants, from which the plaintiff appeals.

1. It appears from the record that there was attached to the decree a stipulation signed by the attorneys for the plaintiff and for such of the defendants as had appeared, consenting that it might be entered as the decree in the case. It also appears that the decree was filed with the Clerk of the Court and was entered and copied at length in one of-the judgment record books of the Court, and that at its foot, as recorded in the Judgment Book, is the entry: “ Decree rendered on the 15th October, 1856.”

From all this—and it is all there is before us. throwing light upon the question—it certainly does not appear that this decree was not the act of the Court. The fact that the attorneys stipulated that it might be entered has no tendency to show that the Court did not afterwards order it to be entered as the decree of the Court. Purporting to be a judgment of the Court, and found regularly entered in its records, the presumption is it was entered in pursuance of an order of the Court.

The rule is elementary that upon collateral attack all intendments are indulged, in support of the judgments of Courts of superior jurisdiction. Their records are conclusively presumed to speak the truth, and whatever is upon their records is presumed—the contrary not appearing—to be rightfully there. (McCauley v. Fulton, 44 Cal. 355.)

Dor was it necessary that. Borland’s default should be actually entered up by the Clerk before a decree could be *463taken against him. The only purpose of a default is to limit the time during which the defendant may file his answer, and that time never extends beyond- a trial and judgment. (Bowers v. Dickerson, 18 Cal. 420; Miller v. Miller, 33 id. 355.)

2. Bid the Court acquire jurisdiction of the person of Borland? A distinction must be borne in mind between an entire want of jurisdiction and irregularity in obtaining jurisdiction. In the one case the judgment is void and can be attacked either directly or collaterally, while in the other it is erroneous and can be attacked only by a direct proceeding against it in the Court where it was rendered, or upon appeal. The proof of service upon Borland, as shown by the judgment roll in the foreclosure case, is found in an affidavit made by one Comstock, in which he says that in the City of San Francisco “ on the 11th day of February, A. B. 1856, he personally served a copy of the summons in this action on the defendant Thomas Borland, and received and accepted one on the same day as the agent of the defendant ' Samuel Smith, and that on the 13th day of February, 1856, he served a copy of the summons and complaint in this action on defendants Robinson and Mead, .by serving said papers on their attorney in fact, Mr. Ladd, personally.” It is objected on the part of the plaintiff that this proof of service is insufficient to show that a copy of the summons Was delivered to Borland personally, or that either he or any other one of the defendants was served with a qopy of the complaint. The statute required that the summons should be served by a delivery of a copy thereof “ to the defendant personally,” but it did not require any particular form of certificate or affidavit of service, except that it “ shall state the time and place of service.” (Pr. Act, Sec. 34.) The fact of service was material, and from the time service was made the Court was deemed to have acquired jurisdiction (Sec. 35.) The return of service might be formal or informal, *464perfect or imperfect, still if service were in fact made, the Court acquired jurisdiction of the person of the defendant, and the judgment thereafter rendered could not be attacked collaterally. (Pico v. Sunol, 6 Cal. 294.)

The copy of the summons was served on Doriand. It does not appear from the return that the copy was not delivered to him personally, and we think it has at least some legal tendency to prove that it was so delivered. True, it might have been delivered to an agent or left at his house or place of business; but why presume that rather than that it was delivered as the law required it to be? In Central Bank v. Wright, 12 Wend. 190, the defendants insisted that the certificate was defective in omitting to state that the declaration was served personally, but the Court, by Uelson, J., said: “ In cases of the commencement of suits by the filing and service of a declaration, the declaration must be served personally; and it will be intended, when the Sheriff certifies that he has served a copy on a defendant, that it was served personally, unless the contrary is shown.”

In Coit v. Haven, 30 Conn. 190, the Court said: “Jurisdictional facts, such as the service of the writ and the like, are presumed and conclusively proved in the case of a domestic Court of general jurisdiction, unless the record itself shows the contrary, which the present does not.”

In Carpentier v. City of Oakland, 30 Cal. 440, it was held that “ if it does not appear affirmatively upon the face of the record of a Court of general jurisdiction that the Court had jurisdiction of the defendant, that fact will be presumed, unless the record shows affirmatively that no jurisdiction was acquired.”

In Hahn v. Kelly, 34 Cal. 407, the Court said: “We consider the true rule to be that legal presumptions do not come to the aid of the record, except as to acts or facts touching which the record is silent. When the record is silent as to what was done, it will be presumed that what ought to have *465been done was not only done but rightly done; but when the record states what was done, it will not be presumed that something different was done.”

The record fails to show by direct assertion that the copy of the summons was delivered to Dorland, but as it fails to show the contrary, and as the Court must have found from the return or other evidence before it that it was so delivered—for upon that its jurisdiction depended, and it necessarily decided that it had jurisdiction, as the first point in the case—we think" it one of the cases where presumption will now come to the aid of the judgment, and that, if the Court erred in its conclusions in this respect, the error should have been taken advantage of by motion or by an appeal.

In respect to the service of a copy of the complaint, the affidavit states that copies of the complaint and summons were served on Eobinson and Mead, two of the defendants, “by serving said papers on their attorney in fact, Mr. Ladd, personally.”

The twenty-eighth section of the Practice Act, as it stood in 1856, provided that “ if there be more than one defendant, and such defendants reside within three miles of the Clerk’s office, a copy of the complaint need be served on only one of the defendants.”

The service of copies of the complaint and summons on Ladd was not a service on Eobinson and Mead. They appeared apd answered to the complaint, but their appearance must be held to have been voluntary. It does not follow, however, because this attempted service on them was ineffectual to give the Court jurisdiction of their persons, that the service of a copy of the summons on Dorland was also ineffectual to give the Court jurisdiction of his person. The service on him may have been irregular, but it was not therefore a nullity. He was notified of the action, and of *466the time and place when and where he was required to appear and answer to it. He knew that he had received all that the law required him to receive where, as there, there was more than one defendant. He knew, moreover, that if there was any question of the sufficiency of the service he could appear, and upon motion have that question settled at once. Knowing all this, he chose to remain silent and let judgment go against him. The Court, as we have seen, adjudged that it had jurisdiction, and we do not think that either he or his grantee can now be heard, in this collateral way, to say that the judgment was void, and that the purchaser thereunder acquired no rights.

The case of Dorente v. Sullivan, 7 Cal. 279, is not unlike this in principle. There the proof of service was by an affidavit which failed to show that the party making it was a “white male citizen of the United-States, over twenty-one years of age, who is competent to be a witness on the trial of the action.” The judgment was by default, and it was claimed that the Court had no jurisdiction. It was held, however, to be but a mere irregularity, and that the judgment could not be attacked collaterally on this ground. A similar point was made in Peek v. Strauss, 33 Cal. 678, and with like results.

3. The case shows that the purchaser at the Sheriff’s sale entered into possession under his deed in 1857, and that he and those claiming under him continued to hold a hostile possession until this action was brought in 1867. It further shows that during nearly all that time Borland resided upon an adjoining lot and knew of this hostile possession, and that without questioning its rightfulness he at one time bought back from the purchaser a portion of the premises taken and held under the Sheriff’s deed. These facts are not without important significance in the case. They show not only an acquiescence in the judgment and sale for a period twice as long as that required to bar an action to recover real prop*467.erty under our Statute of Limitations, but they show also an affirmative recognition by Borland that the judgment was right, and that the title to the property passed to the purchaser thereunder. They should, therefore, we think, lead to the just presumption (that everything necessary to the validity of the judgment “was not only done, but rightly done.” (Simson v. Eckstein, 22 Cal. 580.) Long acquiescence by one in the adverse enjoyment of a right by another leads to an inference that the former has parted with it in a legal form. (1 Phill. Ev., C. H. & Es. Notes, 609.) So in reference to a deed by an attorney in fact, it has been held that long acquiescence of the principal in the possession under the conveyance -is evidence that the conditions on which the attorney was to make the deed had occurred, and that he did not transcend his- power. (McConnell v. Bowdry’s Heirs, 4 Mon. 392.)

Judgment affirmed.

Mr. Justice Rhodes dissented.