People v. De Bernal

[387]By the Court,

Wallace, C. J.: The people on the 6th day of October, 1870, had judgment by default against the personal defendant and the real estate, also made a defendant in the action, and the defendants have appealed from the judgment. The question, as made hy the appellants, is as to whether or not it sufficiently appears in the record that the Court below obtained jurisdiction of the defendants by the service of process, so as to authorize the entry of judgment against them, the judgment reciting the fact of service.

1. As to the personal defendant: The return, made by the Sheriff upon the summons, is to the effect that after a diligent search the personal defendant could not be found, and that on the 5th day of August, 1870, he posted a copy of the summons on the door of the Court House in the City of Monterey. The Act (Hitt., Sec. 6190,) requires that the summons shall be served by delivering a copy thereof to each defendant named—“ provided, that if the personal defendant cannot be found in the county in which said action is brought, then service may be made upon such defendant by posting a copy of the summons for twenty days at the Court House door of said county.” The return of the Sheriff shows that the personal defendant could not he found, and that thereupon he posted the copy of the summons at the Court House door, and was so far forth a compliance with the requirements of the statute, for the personal defendant was thereby served, though not personally served, with the summons. But the same Act in an after section (Sec. 6193) also provides in terms “that no personal judgment shall be rendered unless the person against whom it is rendered shall have been personally served with the summons, or shall have appeared in said action.” The purpose usually had in view in effecting the service of a summons upon a defendant in a civil action, whether such service be personal or constructive [388]merely, is to acquire that jurisdiction of his person which is ordinarily indispensable to enable the Court to proceed to judgment, and if such service of the one character or the other be effected pursuant to the provisions of law in a case where the subject matter is itself one cognizable by the particular Court before which the defendant is cited to appear, it results upon general principles that the Court may rightfully proceed to determine the cause, and that its judgment concerning the subject matter of the suit cannot be questioned for mere lack of jurisdiction to render it. The statute having provided that though under certain circumstances a service not personal in its character might be properly effected upon a personal defendant, yet that in such case no personal judgment should be rendered against him, and the judgment here having been in fact rendered against him without such personal service and without appearance, it is not necessary (as it would have been in case the proceeding before us were a mere collateral attack upon the judgment) to determine if a judgment so rendered would be absolutely void—a mere nullity in the strict sense. Whether void or not, it is certainly erroneous, and upon direct appeal, as here, cannot be supported.