William Wilson Co. v. Trainor

THE COURT.

This is an appeal upon behalf of both defendants from a judgment in an action of unlawful detainer.

Upon a direct attack by appeal the judgment cannot be held to be void merely because the affidavits upon which the order for publication of summons was granted, do not appear in the judgment-roll as is required by section 670 of the Code of Civil Procedure. It appears from the order for publication upon which the default of the defendant John Trainor was entered, that the affidavits made in support of the order for publication were on file in the action, and that they were subsequently offered and received in evidence upon the hearing of a motion to quash the service of summons. It thus clearly appears from the record before us that the affidavits referred to in the order were in existence prior to the time of the making of the order. No claim or showing was made that the affidavits were insufficient to support the order, and the failure of the clerk of the court to perform the ministerial duty of including in the judgment-roll necessary papers which were on file and available, cannot be considered as a ground for reversal. If in fact no affidavits in support of the order had been made that could and should have been affirmatively shown in the record upon appeal, and in the absence of such a showing the judgment upon direct attack must be presumed to be correct.

(Kahn

v.

Matlhai, 115

Cal. 689, [47 Pac. 698].)

The order for publication was not defective because it did not include the proof upon which the court found the existence of the jurisdictional facts necessary to the making of the order. Jurisdiction to make the order rested upon the averments of the affidavits, and not upon the recitals of facts found in the order. The order having been made, it will be presumed that the jurisdictional facts necessary to its making were duly established. (Goo

dale

v.

Coffee,

24 Or. 346, [33 Pac. 990].)

The denials of the answer of the defendant Elizabeth Trainor tendered no issue save upon conclusions of law, and the answer as a whole was so evasive and contained so many negative pregnants that the trial court was justified in strik