40 Cal. 572 | Cal. | 1871
delivered the opinion of the Court, Temple, J., CROCKETT, J., and Wallaoe, J., concurring:
The record in the action of Workman v. Hancock was excluded, when offered in evidence by the defendants, on the ground that it appeared therefrom that Benjamin J. Yirgin, who held the legal title to the premises in suit, had not been served with process. It appears from the record, that a summons was issued and placed in the hands of the Sheriff of Los Angeles County, who served the same upon certain of the defendants, and returned it to the Clerk’s office; and that subsequently, and after it had been served
It is not denied that tbe summons was in fact served upon Virgin; but it is contended by tbe plaintiffs, that as tbe summons bad been returned to, and filed in, tbe Clerk’s office before it came to tbe bands of tbe Sheriff of San Francisco, it did not confer any authority on him to make tbe service — that when tbe summons was returned and filed it became functus officio for all purposes whatsoever, except to constitute a part of tbe record in tbe cause. A summons is not directed to tbe officer or person by whom it is to be served, nor is it required to be returned at or before any specified time; but it is directed to tbe defendants, and is required to be returned with tbe proof of service. There can be no question that, after the service of tbe summons upon tbe defendants wbo were found in Los Angeles County, tbe plaintiff might have delivered it to tbe Sheriff of tbe city and county of San Francisco, and that bis service of tbe process would have been valid. Tbe statute does not require that a separate summons shall issue to eacb county in which any of tbe defendants may reside; and after a summons has been served on some of tbe defendants and returned, it may become necessary or proper that it should be served on other defendants, either in tbe sainé or another county; and in that case it would be competent to tbe Court to order it to be delivered to tbe plaintiff for further service. When tbe summons was served, after having been once returned, and tbe Court thereupon assumed jurisdiction of tbe defendants, and rendered judgment against them, it will be presumed, in a collateral attack on tbe judgment, that tbe Court made tbe requisite order, permitting tbe summons to be withdrawn for further service. A re-delivery of tbe summons, without such an order, would be an irregularity of which tbe opposite party might avail himself,
It was altogether useless for tbe defendants to offer in evidence tbe proceedings under tbe judgment of foreclosure, after tbe exclusion of tbe judgment. When an essential link in tbeir chain of title was excluded, it needed only tbe statement tbat they claimed through tbat chain of title, in order to present for review tbe questions arising upon tbe ruling of tbe Court in tbat respect.
Judgment and order reversed, and cause remanded for a new trial.
