Quivey v. Porter

37 Cal. 458 | Cal. | 1869

By the Court, Sanderson, J.:

In Hahn v. Kelly, 34 Cal. 391, we had occasion to discuss at some length the principal questions involved in this case. Under the rule in that case the Court below was in error in holding the judgment in Peter Quivey v. Joseph S. Ruckle to bo null and void for the want of jurisdiction over the person of the defendant. The general rule upon this subject, as stated in Hahn v. Kelly, is that the jurisdiction of Superior Courts, in cases which come before the Court collaterally, will be conclusively presumed, unless a want of jurisdiction appears upon the face of the record when offered in evidence. What is meant by “a want of jurisdiction appearing upon the face of the record” is fully considered and explained by us in that case. We there held in substance that in ascertaining whether a want of jurisdiction appears the whole record must bo consulted, and by way of illustration we supposed a case almost identical with the present. We said: “Suppose that part of the judgment roll, denominated the proof of service, shows that service was made upon the son of the defendant, and the remainder of the roll says nothing about service. We then have a want of jurisdiction appearing upon the face of the record. But suppose the judgment states that the defendant' appeared, or that personal service was made upon him, or something else which is equivalent, as it frequently does, the opposite result follows, for the record cannot lie, and it appears that the father as well as the son has been served, which may well have been the case. The record in such a case does not blow hot and cold, as might be supposed; on the contrary, both acts may have been done. On presentation of the return of service upon the son, the Court may have declared it no service, and service upon the father may have been subsequently made, and the wrong return may have found its way into the judgment roll. To hold thus would be consistent with the record, while to hold otherwise would be to contradict the judgment.”

Apply the foregoing language to-the record in Peter Quivey v. Joseph S. Ruckle. The proof of service, or the return of the Sheriff, shows that the summons was served on George S. Buckle. This was no service on Joseph S. Buckle; and were the remainder of the record silent upon that question, there would be a want of jurisdiction apparent upon the face of the record under the rule in Hahn v. Kelly. But the remainder of the record is not silent. The judgment shows that service was made upon Joseph S. Buckle, and this statement of the Court is not contradicted or overcome by the statement of the Sheriff; on the contrary, both maybe true, and in view of the fundamental rule that the record of a Court of superior jurisdiction imports absolute verity, we are bound to so regard them.

The language of the judgment is as follows: “In this case comes the plaintiff, by his attorney, and the defendant still failing to appear and answer the action, and it appearing to the satisfaction of the Court, upon the testimony of John II. Moore, that the said Joseph S. Ruckle is a resident of this Santa Clara County, and that he has been duly served with process,” etc. Whether we understand the Court as saying that the facts of residence and service were both proved by the testimony of Moore, or that only the former was so proved, as claimed by the learned counsel for the respondent, does not affect the result. Under the latter reading there would he a distinct statement that the defendant was served, unaccompanied by any statement as to the mode of proof, which would bring the case clearly within the rule already stated. Under the former reading, the only question which could be made would he as to the mode of proof, and not as to the fact of service,' and which, at best, amounts to nothing more than an irregularity, for it is the fact of service which confers jurisdiction, and not the evidence of that fact.

The Court below also erred in excluding the record in Wise v. Ruckle et al. In determining the question whether the Court, in that case, obtained jurisdiction over the person of Ruckle, we cannot look to the affidavit of Wise for a publication of summons, nor to the order of the Court directing publication to he made. (Hahn v. Kelly, supra.) In that connection (assuming that the judgment is silent upon the question of service) the only paper to which we can look is the affidavit of O’Doherty as to the fact of publication. The only objection to that is that O’Doherty calls himself “the proprietor” of the newspaper instead of “the printer,” which last is the language of the statute. There is nothing in the objection. In our judgment the two, in thé sense of the statute, are synonymous.

Hew trial granted.

Mr. Justice Shatter -and Mr. Justice Rhodes expressed no opinion.