Rowley v. Howard

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. A tax deed based on a default judgment from a Justice's Court is void where the return of service was signed only by a deputy sheriff, as the court lacked jurisdiction. Because the judgment was void for lack of jurisdiction, it may be collaterally impeached.

Issues

Whether a return of service signed only by a deputy sheriff is sufficient to confer jurisdiction upon a Justice's Court.
Whether a judgment from a Justice's Court may be collaterally impeached for lack of jurisdiction.
Whether a statutory provision making a tax deed conclusive evidence of title precludes a challenge based on a void underlying judgment.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The act and return of a deputy is a nullity, unless done in the name and by the authority of the Sheriff.”

“The general rule applicable to all judgments, is that they cannot be impeached in a collateral action for errors or irregularities, but may for want of jurisdiction.”

Synopsis

The return of a Deputy Sheriff, on a process served, is a nullity, unless made in the name of the Sheriff.

The jurisdiction of Justices’ Courts is special and limited, and the law presumes nothing in favor of their jurisdiction. A party who asserts a right under a judgment rendered in a Justice’s Court, must show affirmatively every fact necessary to give the Court jurisdiction to render such judgment.

The acts in relation to the collection of delinquent taxes, which compel the defendant to verify his answer, do not change the rule in the forty-sixth section of the Practice Act, “ that where the complaint is not verified, a general denial of its allegation in the answer will put in issue all its material allegations.”

A summons was served by a Deputy Sheriff, and returned with the following signature to the return: “Elijah T. Cole, D. S.” Judgment was rendered by default: held, that the judgment was null and void, for want of jurisdiction. The general tale applicable to all judgments is, that they cannot be impeached . in a collateral action, for errors or irregularities, but may be for want of jurisdiction.

Crocker,, J. delivered the opinion of the Court—Norton, J. concurring.

This is an-action to recover the possession of a lot in the town of Folsom. The plaintiff claims title under a tax deed, executed by the Sheriff, in pursuance of a sale under an execution issued out of the District Court, upon a judgment for taxes, rendered in a Justice’s Court by default. The judgment was rendered, and the proceedings had, under and in pursuance of a statute of this State, entitled “ An Act to provide for the collection of Delinquent [403]Taxes in the City and County of Sacramento,” approved April 3d, 1860. (Stat. 1860, 139.) The return of the service of the summons issued in the action for taxes is signed “ Elijah T. Cole, D. S.;” and it is objected that this return is insufficient to give the Court jurisdiction, or to authorize him to enter a judgment by default. This objection is well taken. In Joyce v. Joyce (5 Cal. 449) it was held, that such a return was insufficient to prove service ; and that the act and return of a deputy is a nullity, unless done in the name and by the authority of the Sheriff. And a similar principle was laid down in Lewis v. Thompson (3 Cal. 266). The jurisdiction of Justices’ Courts being special and limited, the law presumes nothing in favor of then* jurisdiction; and a party who asserts a right under a judgment rendered in such Court, must show affirmatively every fact necessary to confer such jurisdiction. (Swain v. Chase, 12 Cal. 283 ; Whitwell v. Barbier, 7 Id. 64; Lowe v. Alexander, 15 Id. 296.)

The respondent, in reply to this point, contends that as the complaint alleges that “ said judgment was duly and lawfully recovered in manner and form prescribed by law,” and as this averment is not specifically denied in the answer, therefore it is admitted. The complaint is not verified, and the answer denies generally the allegations of the complaint. This averment cannot, therefore, be held as admitted. It is true, that the act in question requires the answer to be verified; but this does not change the rule established by Sec. 46 of the Practice Act. The statute also provides that “ any deed derived from a sale of real property, under this act, shall be conclusive evidence of title, except as against “actual frauds, or prepayment of the taxes, and shall entitle the holder thereof to a writ of assistance, from the District Court, to obtain possession of such property.” The respondent contends that this statute precludes the appellant from making the objection. In the case of Mills v. Tukey (22 Cal. 373), this clause of the statute was considered on an appeal from an order granting a writ of assistance ; but in that case the Court founded its decision upon the fact that “ the sale was made on a judgment regularly obtained,” and therefore is not authority upon the question now before us, where the judgment is null and void for want of jurisdiction. The

Rowley v. Howard

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