23 Cal. 85 | Cal. | 1863
delivered the opinion of the Court—Norton, J. concurring.
This is an action to recover the possession of certain personal property. The plaintiff claims title thereto by virtue of a bill of sale from D. 0. Seaver, the former owner; but before a change of possession had been effected, under the bill of sale, the property was levied upon by the defendant, a constable, under an attachment issued by a Justice of the Peace in an action of Hagy & Grill against D. 0. Seaver & J. W. Crosby, and the defendant claims the right to hold the property by virtue of the levy under this attachment. The Court below held this levy and attachment to be valid, and a verdict was rendered for the defendant, from which the plaintiff appeals. .
It appears that at the time the attachment issued, a summons was also issued in the action, dated October 23d, 1860, and made returnable October 27th, 1860. On the return day this summons was returned not served. Thereupon the Justice of the Peace, upon an affidavit that the defendant concealed himself to avoid the service of summons, made an order that the summons be served by publication for one week, and a new summons was issued, dated October 27th, and made returnable November 7th. Upon proof of the publication of this summons a judgment by default was entered against the defendant, D. C. Seaver. Before any execution was issued on this judgment the present action was commenced.
The plaintiff contends that the second summons was the summons in the case, because that was the summons served by publication,
It is further contended that the judgment rendered in the action in which the attachment issued is void, on the ground that the affidavit on which the order to publish the summons was made is insufficient. The affidavit states that the defendant, D. 0. Seaver, was at the time a resident of the Eirst Township in the County of Contra Costa; that he had occupied a house. on a tract of land claimed by him to be his own, and which he had cultivated up to the commencement of the suit and for a long time previous; that on the twenty-second day of October, the day before the commencement of the suit, he left his residence, informing his servants that
It is also objected that the order of publication is defective, because in designating the newspaper in which to publish the summons, it did not state that such paper was “ most likely to give notice to the person to be served,” or which summons was to be thus published. These objections are not well taken. The order directs the summons to be published in a certain newspaper, with the time it was to be thus published, and the presumption is that the Justice designated such particular paper because it was most likely to give notice to the person to be served, but it was not necessary for him to state in the order that such was his reason. The summons to be served was any legal summons issued in the case. The first summons had been returned not served, and it was therefore the second summons which was to be served by the publication—the first one having no longer any force.
The publication of the summons was proved by the affidavit of the principal clerk of the publishers of the newspaper, and the fact that a copy of the summons had been duly deposited in the post-office, properly directed, was proved by the affidavit of a competent witness. We think this a proper mode of proving such facts, and that a return of such facts, indorsed upon the summons by a constable or Sheriff, is not necessary in such cases.
It is also objected that the summons served is irregular and illegal, because it was returnable eleven days after its date, and it is urged that this is contrary to the provisions of Sec. 541 of the Practice Act, which allows no time exceeding ten days. Sec. 543
It is also objected that the judgment is against D. 0. Seaver, while the name in the published summons is “ D. 0. Seavers.” The names are substantially the same, and there was therefore no error in this. It is further insisted that the judgment is void because the cause of action was a joint contract of Seaver & Crosby, and the judgment was not entered up “ against all the defendants,” as required by Sec. 594 of the Practice Act, but only against Seaver alone. This objection goes only to the form of the judgment, and it has no force in this collateral proceeding. It does not render the judgment void, and therefore cannot be interposed in this action.
We have thus noticed numerous objections of the appellants to the proceedings of the Justice subsequent to the issuing of the attachment, but even if the record had shown that the judgment in that case was irregular or void it would not have aided the appellant in this actioni It would only have shown that the plaintiffs in that action had failed to obtain a valid judgment, in consequence of irregularities in the proceedings before the Justice, by which he
The judgment is therefore affirmed.