Ware v. Robinson

| Cal. | Jul 1, 1858

Burnett, J., delivered the opinion of the Court—Terry, C. J., .concurring.

The plaintiffs commenced their action, upon a promissory note, against Swedenstierna, in the Superior Court of San Francisco. The summons was returned, without sei’vice, and the attoi’ney of the plaintiffs made affidavit that he was informed and believed that Swedenstierna was then in the State, and concealed himself to avoid the sei’vice of process. The Court, thereupon, made an order appointing an attorney to appear for Swedenstierna. The attorney appeared, and put in a general denial; and judgment was rendered for plaintiffs. Upon this judgment execution was issued, and the attorney of the plaintiffs made affidavit that he was informed and believed that Robinson and Devoe had property of Swedenstierna’s in their possession. An order was made by the Court, requiring the garnishees to appear and answer before the referee named in the order. They appeared, but refused to be examined, upon the ground that the Court had no jurisdiction of the person of Swedenstierna, and therefore the proceedings were void. The referee reported the fact to the Court; whereupon the Court adjudged the said Robinson and Devoe guilty of a contempt of Court, from which they appealed.

The learned counsel of the plaintiff asks this Court to dismiss the appeal, upon the ground that this was a case of contempt, from the decision of which no appeal will lie. This objection does not seem to be well taken. This question was very fully considered in the several cases of E. A. Rowe on habeas corpus, Januarjr Term, 1857.

Coming, then, to the merits of the case, the learned counsel for Robinson and Devoe insist that that portion of the thirty-first section of the Practice Act, allowing the Courts to appoint attorneys for defendants, in lieu of publication, “ is unconstitutional, and against the principles of a free government.”

The Constitution of the United States, and the Constitution of this State, both provide that no person shall “ be deprived of life, liberty, or property, without due process of law.”

Whether this restriction applies as well to the Legislature as to the judiciary, it is not now necessary to determine, as the question is not involved in this ease. If the personal judgment, in cases like this, was intended by the code to be' final and conclusive, under all circumstances, after the expiration of six months, then its constitutionality might admit of very grave doubt. But we cannot think such was the intention of the Legislature.

It is true that the judgment is, in form, personal and final, and that the code, section sixty-eight, authorizes the Court, upon such terms as may be just, to allow the defendant, at any time within six months, to answer to the merits of the original action. Under the theory of the Practice Act, the defendant, when summoned in the manner prescribed, is as duly brought into Court as if personally served with the summons; and, as a legitimate result of being legally in Court, unless he denies the allegations of the complaint, within six months, he is held to admit them to be true, and cannot afterwards show their falsity.

But this theory of the code, as applicable to this case, proceeds upon the ground that the defendant was in fact within this State, and concealed himself to avoid the service of process. The affidavit is only prima facie evidence of these facts. If untrue in point of fact, the defendant could at any time institute his suit to set aside the judgment, upon the ground of fraud. This fraud is not found in the cause of action, as set forth in the complaint, but in the manner of bringing the defendant into Court. Upon a false state of facts, as to the grounds upon which the service of process 1ms been dispensed with, the plaintiff has obtained a judgment in his own wrong, and that judgment cannot be permitted to stand. Like any other judgment obtained by fraud, it may be set aside-. But when the facts of residence and concealment do exist, then the defendant has no right, after the expiration of the six months, to question the truth of the allegations of the complaint. He is deemed to he in Court, under such a state of circumstances, and must be held to know the allegations of the complaint, and to admit them to be truc, in the samo manner as if personalty served with the summons. When he in fact conceals himself, to avoid the service of process, he cannot complain of the want of such service, when he has, by his own act, prevented it. The plaintiff has a right to the service of process, and he cannot be deprived of this right by the act of the defendant, who voluntarily puts himself beyond the reach of process, with the criminal intention of avoiding it.

The judgment in this case was good, until set aside for legal cause, and the garnishees should have answered. The order of the Court below is therefore affirmed.