Swain v. Chase

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

The proceedings taken in the Justice’s Court, in the suit of Allen v. Chase, were not sufficient to give the Court jurisdiction of defendant.

An attempt seems to have been made to procure service by publication ; but it does not appear that the provisions of the statute were complied with. The affidavit on which the order of publication was issued, states, that defendant Chase could not, after due diligence, be found in the County of Contra Costa; that he had inquired of one Fogg, who was an intimate friend of Chase, as to his whereabouts; that Fogg was unable to inform him, and that plaintiff did not know where Chase could be found within the State.

The statute authorizes service by publication, when the party to be served resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of summons, and the fact shall appear by affidavit, etc.

The affidavit of Allen does not show that Chase had left the State, or that any diligence has been used to ascertain his whereabouts, beyond inquiring of a single individual, and there is no pretense that he was concealing himself to avoid service. It was wholly insufficient to authorize the order of publication.

The law presumes nothing in favor of the jurisdiction of Justices’ [286]Courts; and a party who asserts a right, under the judgment of a Justice, must affirmatively show every fact necessary to confer such jurisdiction. Van Elten v. Jilson, 6 Cal. 19; Whitwell v. Barbour, 7 Cal. 64.

Judgment affirmed.