Howard v. McChesney

103 Cal. 536 | Cal. | 1894

McFarland, J.

This is an appeal by the defendant McChesney from an order denying his motion to set aside a decree' of foreclosure entered against him by default. His motion is not based upon section 473 of the Code of Civil Procedure; he does not ask to be allowed to answer to the merits; it was not made until more than a year after the rendition of the judgment.. It rests entirely upon the theory that the judgment is absolutely void, and could, therefore, be set aside at any time on motion.

Service was had on appellant by publication; and he bases his contention that the judgment is void upon the ground of the insufficiency of the affidavit of publication made before the entry of the decree and attached to the judgment-roll. The publication was by the order of the court to be for two months in a certain weekly newspaper; and the affidavit stated that the summons was published in said newspaper every week and weekly “for the period of more than two months from the twenty-sixth day of November, 1891, to the eleventh day of February, 1892, viz”: Then follows a statement of each seventh day between said two dates, except that the 21st of January, 1892—a regular day for the issuance of said paper—was omitted from the enumeration. The omission of that day is the only alleged defect in the affidavit. Before the motion to vacate was heard, the court allowed the person who made the first affidavit to file a second one which showed that publication was made on said January 21st.

The order must be affirmed. The judgment is not void on its face. It contains a recital of due service, and there is nothing in the record inconsistent with such recital. .The previous direct statement in the affidavit that summons was published each week for two months between two named dates is not overcome and rendered valueless by the subsequent statement under a videlicit. The most that can be said about the affidavit is that it is ambiguous. That which follows a videlicit does not destroy that which precedes it; the general rule rather is that if repugnant to the preceding matter it will be rejected. (Brown v. Berry, 47 Ill. 177; 2 Abbott’s Law Dictionary, 447, 635.) Moreover, the court clearly had the right to allow in evidence the second affidavit, which cleared away any possible doubt which there might be about the meaning of the first. (See Herman v. Santee, ante, p. 519, decided August 13th by Department One of this court, and cases there cited.)

The order appealed from is affirmed.

De Haven, J., and Fitzgerald, J., concurred.