People v. Herod

MR. JUSTICE PLUMMER Delivered the Opinion of the Court.

This is an appeal from an order denying a motion to vacate a judgment foreclosing a certificate of purchase.

The record shows that on or about January 11, 1887, James Herod became the holder of a certificate of purchase for section 16, township 28 south, range 29 east, .M. D. B. & M. No payments were made as required, and on the twenty-third day of July, 1890, a complaint in foreclosure of the certificate of purchase was filed. On December 1, 1890, a decree of foreclosure was granted in said cause in favor of the plaintiff. On January 30, 1928, a little over thirty years after The judgment was entered, the appellant served a notice of motion to set aside the judgment on two grounds —First: That no service of summons, either personally or by publication, was ever made or had upon the defendant; and second: That no, legal service of summons, either personally or by publication, was ever, made or had upon the defendant.

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The judgment-roll shows a complaint, the issuance of summons, order for publication of summons, and judgment by default, followed by decree of foreclosure. The judg- • ment or decree of foreclosure recites that the defendant had been regularly served with process, and had failed to appear and answer the complaint; that the time for answering had expired, and that the defendant’s default had been entered according to law. The judgment and decree then proceeds to recite the purchase of the certificate by the appellant, failure to make payment as required by law, following which, judgment of foreclosure was entered in favor-of the respondent.

The appellant relies principally upon the alleged insufficiency of the affidavit for publication of summons. The contention is made that the affidavit contains no probative facts and consists only of a statement of ultimate facts and conclusions.

The judgment to which we have referred recites that the appellant was regularly served with summons, and unless there is something in the record, which we can consider, that shows that this statement in the judgment is not well founded, the assertion that the judgment is void upon its face is without merit. We have reference to the appellant’s contention concerning the affidavit for publication of summons. Whatever may be contained therein is entirely of no moment here. Prior to the amendment of section 670 of the Code of Civil Procedure in 1895 (Stats. 1895, p. 45), the affidavit for service of summons by publication constituted no part of the judgment-roll. As we have stated, this action was begun in July, 1890, and judgment entered in December, 1890, some five years preceding the time when the affidavit for publication was, by the legislature, made a part of the judgment-roll.