Drake v. Duvenick
Before: Belcher
Synopsis
Collateral Attack on Judgment Foreclosing a Mortgage.—Where there is attached to a decree foreclosing a mortgage, a stipulation, signed by the attorneys, consenting that it may he entered as the decree in the case, and the decree is filed with the Clerk, and is entered and copied at length in the Judgment Record Book, and at the foot of the record is the entry, “ Decree, rendered on the 15th of October, 1856,” there is nothing which shows that the judgment was not the act of the Csurt, and it cannot he successfully attacked in a collateral proceeding.
Collateral Attack on Judgment.—In a collateral attack on a judginent of a Court of superior jurisdiction, all intendments are indulged in its support, and whatever is upon its record is presumed to have been rightfully done.
Entering Up a Default.—It is not necessary that the default of a party should be actually entered up by the Clerk before a judgment can he taken against him.
Irregular Service of Summons.—Mere irregularity in the service ef a summons does not render a judgment void for want of jurisdiction.
Return of Service of Summons.—When the return on a summons states that a copy of the summons was personally served on the defendant in the action, giving the time and place, this return, although informal, is yet sufficient to give the Court jurisdiction of the person. So that the judgment is not void for want of jurisdiction, when collaterally attacked.
Idem.—Such return does not show that a copy of the summons was not delivered to the defendant personally, and it has at least some legal tendency to prove that it was so delivered.
Idem.—If in such case there is more than one defendant, the fact that the return does not state that a copy of the complaint was served with the summons, does not render the judgment void in a collateral attack.
Service of Summons on Attorney in Fact of Defendant.—A summons cannot be served by delivering a copy to the attorney .in fact of the defendant.
Presumption in Favor of Validity of Judgment.—When a purchaser under a Sheriff’s sale enters into possession under the Sheriff’s deed, with the knowledge of the defendant, and he continues for several years to reside near the land and suffers the purchaser to remain in possession, and acquiesces in such adverse possession of the purchaser and buys hack a part of the land, these facts are sufficient to warrant the Court in presuming, in a collateral attack on the judgment, that everything necessary to the validity of the judgment was not only performed, hut rightly performed.
By the Court, Belcher, J.: This is an action of ejectment to recover the possession of land in the City of San Francisco. Both parties claim title to the demanded premises under one Thomas Dorland; the defendants, under a Sheriff’s deed made in 1857, in pursuance of a decree of foreclosure and sale thereunder, and the plaintiff under a conveyance from Dorland, made in 1867.
At the trial the defendants offered the judgment roll in the foreclosure case, and the plaintiff objected to its being received in evidence on the ground that no judgment or de[462]cree in the case was ever rendered by the Court, and the Clerk had no power to enter the judgment by default; and on the further ground that it affirmatively appeared therefrom that Borland was not served with process and did not appear in the action, and the Court did not acquire jurisdiction of his person, and the judgment was, therefore, void as to him. The Court overruled the objection and admitted the record in evidence. Judgment was rendered in favor of defendants, from which the plaintiff appeals.
1. It appears from the record that there was attached to the decree a stipulation signed by the attorneys for the plaintiff and for such of the defendants as had appeared, consenting that it might be entered as the decree in the case. It also appears that the decree was filed with the Clerk of the Court and was entered and copied at length in one of-the judgment record books of the Court, and that at its foot, as recorded in the Judgment Book, is the entry: “ Decree rendered on the 15th October, 1856.”
From all this—and it is all there is before us. throwing light upon the question—it certainly does not appear that this decree was not the act of the Court. The fact that the attorneys stipulated that it might be entered has no tendency to show that the Court did not afterwards order it to be entered as the decree of the Court. Purporting to be a judgment of the Court, and found regularly entered in its records, the presumption is it was entered in pursuance of an order of the Court.
The rule is elementary that upon collateral attack all intendments are indulged, in support of the judgments of Courts of superior jurisdiction. Their records are conclusively presumed to speak the truth, and whatever is upon their records is presumed—the contrary not appearing—to be rightfully there. (McCauley v. Fulton, 44 Cal. 355.)
Dor was it necessary that. Borland’s default should be actually entered up by the Clerk before a decree could be
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)