Eccleston v. Roseberg (1921) · DecisionDepot

Eccleston v. Roseberg

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 26, 1921 No. Civ. No. 3599.Published

Before: Conrey

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Holding. A judgment is not subject to collateral attack by extrinsic evidence if the judgment-roll contains sufficient recitals or findings to establish jurisdiction, even if the summons and return are missing from the record.

Issues

Whether a judgment may be collaterally attacked by evidence outside the judgment-roll showing a lack of service of process.
Whether a judgment-roll containing a finding of the appointment of a guardian ad litem implies that the necessary service of summons was performed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Defendant’s attack upon the judgment being collateral, the judgment must be held to be valid unless the judgment-roll shows it to be void—unless, as the authorities put it, it is void upon its face.”

“The judgment-roll cannot, on this collateral attack, be overcome by evidence outside the record thereof, showing, as against the record itself, that in fact the steps necessary to acquire jurisdiction were not taken.”

Synopsis

The facts are stated in the opinion of the court.

CONREY, P. J.

The complaint alleged that on the twenty-fifth day of April, 1913, a judgment was duly given and made in favor of the plaintiff and against the defendant for a stated amount. This is an action to renew that judgment. By her answer in this action the defendant denied that said former judgment was duly given or made, and alleged that the court in said former action was without jurisdiction to make or enter any judgment against the defendant. Judgment having been entered in favor of plaintiff in this action, the defendant appeals therefrom.

At the trial in this action, the plaintiff introduced in evidence the judgment-roll in the former action. The summons and return were missing. The original complaint in that action was filed on the first day of July, 1911, and alleged that the defendant was then of the age of about thirteen years. An amended complaint was filed on the fifth day of October, 1912. Supplemental matter was contained therein, whereby, after stating that on the ninth day of June, 1911, the defendant was of the age of fourteen years, it was alleged that S. R. Roseberg, her father, “was on the eighteenth day of October, 1911, duly appointed by an order of said superior court, guardian

ad litem

for said defendant, Stella Roseberg, a minor, for the purposes of this action, and that he ever since has been and now is such guardian.” On October 18, 1911, an answer to the original complaint was filed, purporting to be the answer of the defendant by her duly appointed guardian

ad litem,

the said S. R. Roseberg. On the twenty-fourth day of March, 1913, a stipulation was filed, which, like said answer, was signed by Albert Lee Stephens, as attorney for defendant. In that stipulation it was agreed that the answer theretofore filed should stand as the answer to the amended complaint, and

[16]

that any new matter inserted in the amended complaint in accordance with the stipulation he deemed denied. The judgment, in accordance with the stipulation, in its title referred to the defendant as “Estelle Roseberg, by S. R. Roseberg, her Guardian

ad litem,”

Eccleston v. Roseberg

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Synopsis

CONREY, P. J.

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