Bell v. Thompson

Norton, J. delivered the opinion of the Court Field, C. J. concurring.

This is an appeal from an order denying a motion to set aside a judgment.

The judgment was rendered on the ninth day of August, A. D. 1856, and the motion to set it aside was made on the sixteenth day of March, 1861, on a notice which had been served on the ninth day of the same month.

As early as 1852, it was decided in the ease of Baldwin v. Kromer (2 Cal. 582) “ that after the expiration of a term of the District Court, no power remains in it to set aside a judgment, or grant a new trial.” This has been reiterated in numerous cases since. In the case of Robb v. Robb (6 Cal. 21) it was decided that a motion and affidavit could not be considered as a formal proceeding in the nature of a bill in equity. In the present case, it is claimed that these decisions are inapplicable, as this motion proceeds upon the ground that the judgment is entirely void, because, as is claimed, the omission to comply with certain of the require[708]ments of the statute regulating the service of summons by publication is such as to render the proceeding ineffectual to give the Court jurisdiction of the person of the defendant. But in the numerous cases which have been decided in this State, no distinction is made or alluded to as to the grounds of the application; the language being that, “ after the adjournment of the term, the Court loses all control over its judgments ; ” and in several of the cases reference is made to the provisions of the sixty-eighth section of the Practice Act, allowing parties to move within six months in cases where the summons and complaint have not been personally served, as constituting an exception of which the party must avail himself by proceeding under the statute and within the six months. This provision of the statute was, perhaps, intended only for the benefit of persons against whom judgments were obtained regularly, but without a personal service, such as upon a service by publication or by a voluntary appearance by an attorney; but the manner in which it has been spoken of in the cases above referred to indicates the understanding of the Court that the want of service of summons would not be a ground upon which to move to set aside the° judgment, unless done within the six months provided by that section. It has been decided in the cases of Chipman v. Bowman (14 Cal. 157) and Logan v. Hillegass (16 Id. 200) that the District Court “ can, at any time, arrest all process issued by its Clerk on judgments which are void.” But this is by virtue of its control over its own process and its own officers, by which it can refrain from attempting to give efficacy to a void judgment, or what might be called the form of a judgment, and does not necessarily imply that it could entertain a motion to vacate the judgment, treating it as a thing of some efficacy and which there could be some object in having set aside. It is an ordinary exercise of the power of Courts to set aside executions and grant a perpetual stay of execution on judgments which there is no ground for absolutely vacating.