Hancock v. Preuss
Before: Rhodes
Synopsis
Appeal from tbe Seventeenth District Court, County of Los Angeles.
This is an action of ejectment. On tbe trial tbe defendant offered in evidence, tbe judgment roll of an action to foreclose a mortgage of tbe premises in question, in wbicb action tlae plaintiff grantor was a defendant and a party foreclosed. The defendants claimed title, under the Sheriff sale and deed, pursuant to said judgment.
The Court below, ruled that the judgment was void as to plaintiff grantor — one Benjamin J. Yirgin — on the ground that it appeared by the said roll, that he had not been served with summons in the action.
The defendants also offered in the evidence the proceedings under the judgment of foreclosure after the exclusion of the judgment roll.
The other facts are stated in the opinion.
lirst — The Sheriff’s return attached to the summons recites a formal service on Yirgin.
But we can see no reason for an alias summons, nor understand on what, principle the Sheriff’s act of filing the summons with the Clerk before it was served, should destroy the further vitality of the summons. And this appears to be the view taken by this Court in the case of JDupuy v. Shear, (29 Cal. 239.)
Possibly it might be maintained, that by filing the summons it thereby became one of the files of the Court, not subject to be taken out for further service, without an order of Court. But, if so, in order to maintain the jurisdiction of the Court in rendering the judgment, it would be presumed that the required order was obtained. (Hahn v. Kelley, 23 Cal. 391; Sharp v. Humley, 34 Cal. 615¡Smith v. McDonald, July Term, 1870.)
Second — The judgment expressly >and conclusively finds that the said Yirgin was duly served with summons. (Van-geazel v. Hilliard, 1 Houston, Del. 515.)
Third — The recital of the service of summons on said Yir-gin, contained in the findings of the Court attached to the judgment roll, is positive evidence of such service.
A3 a record in the case, it is evidence of the fact of service of summons, as therein expressly declared. (Lick v. Stoclcdale, 18 Oal. 223-4.)
Those cases, which restrict the attack upon the validity of a judgment to the evidences contained in the technical judgment roll, do not make the same restriction when other portions of the record are relied on in support of the judgment. (Hahnv. Kelley, sicpra et ubique; Quivey v. Porter, 37 Cal. 458J
The judgment roll per se does not show want of jurisdiction of the person of Yirgin, and such jurisdiction is therefore conclusively presumed. (Authorities supra.)
The Court would even presume, if necessary, that another summons was afterwards issued and served. {Sharp v. Lum-ley, 34 Cal. 615; Garpentier v. Oakland, 30 Cal. 447-8; Hahn v. Kelley, 34 Cal. 391;Smithv. McDonald, JulyTerm, 1870.)
Rhodes, C. J., delivered the opinion of the Court, Temple, J., CROCKETT, J., and Wallaoe, J., concurring:
The record in the action of Workman v. Hancock was excluded, when offered in evidence by the defendants, on the ground that it appeared therefrom that Benjamin J. Yirgin, who held the legal title to the premises in suit, had not been served with process. It appears from the record, that a summons was issued and placed in the hands of the Sheriff of Los Angeles County, who served the same upon certain of the defendants, and returned it to the Clerk’s office; and that subsequently, and after it had been served [577]upon certain of tbe defendants in Sacramento and Los Angeles counties, it was received by tbe Sheriff of tbe city and county of San Francisco, wbo served it upon tbe defendant Virgin. Tbe official certificate of service was, in eacb case, indorsed on tbe summons.
It is not denied that tbe summons was in fact served upon Virgin; but it is contended by tbe plaintiffs, that as tbe summons bad been returned to, and filed in, tbe Clerk’s office before it came to tbe bands of tbe Sheriff of San Francisco, it did not confer any authority on him to make tbe service — that when tbe summons was returned and filed it became functus officio for all purposes whatsoever, except to constitute a part of tbe record in tbe cause. A summons is not directed to tbe officer or person by whom it is to be served, nor is it required to be returned at or before any specified time; but it is directed to tbe defendants, and is required to be returned with tbe proof of service. There can be no question that, after the service of tbe summons upon tbe defendants wbo were found in Los Angeles County, tbe plaintiff might have delivered it to tbe Sheriff of tbe city and county of San Francisco, and that bis service of tbe process would have been valid. Tbe statute does not require that a separate summons shall issue to eacb county in which any of tbe defendants may reside; and after a summons has been served on some of tbe defendants and returned, it may become necessary or proper that it should be served on other defendants, either in tbe sainé or another county; and in that case it would be competent to tbe Court to order it to be delivered to tbe plaintiff for further service. When tbe summons was served, after having been once returned, and tbe Court thereupon assumed jurisdiction of tbe defendants, and rendered judgment against them, it will be presumed, in a collateral attack on tbe judgment, that tbe Court made tbe requisite order, permitting tbe summons to be withdrawn for further service. A re-delivery of tbe summons, without such an order, would be an irregularity of which tbe opposite party might avail himself,
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