Lapham v. Campbell

McKee, J.: A demurrer to the complaint in the action, out of which [298]this case arises, having been sustained by the Court, the plaintiff declined to amend, and final judgment was entered against him, from which he appealed.

The case itself is a proceeding in equity for relief against a judgment alleged to have heen obtained by fraud. From the the facts averred in the complaint, it appears that in the month of January, 1880, judgment by default was entered in the Superior Court of Placer County, upon an affidavit of proof of service, made by a person- qualified in law to serve process. The affidavit showed that service had been made upon the defendant in the action, by delivery to him personally, on the eighteenth of November, 1879, of a copy of the summons and complaint, at Hot Springs in Placer County, California.

This proof was sufficient to give the Court jurisdiction over the person of the defendant; and as it had jurisdiction of the subject-matter of the action, the judgment rendered in the case was not void nor voidable. The pleader admits that it is fair and regular on its face, but he alleges that it was obtain upon a false cause of action and upon false proof of a service of process in the case, which the plaintiff fraudulently procured to be made on the defendant, who, at the time of the alleged service, was a citizen of the State of Nevada, and not subject to process issued out of the Courts of California.

In the presence of the demurrer these averments must be taken as true; and they, in connection with the other allegations contained in the complaint, constitute a cause of action, unless, as it is contended, the remedy for relief is not by an original action in equity, but is, exclusively, by motion, in the Court in which the judgment was rendered, to vacate and set aside the judgment;

The Code has provided that remedy for relief from a judgment taken against a party through his" mistake, inadvertence, surprise, or excusable neglect (Sec. 473, C. C. P.); or when taken in a case where summons has not been personally served on a defendant. In the first class of cases the remedy must be availed of within six months, and in the second, within a year, after rendition of judgment. But, independent of the ^provision of the Code, I think that a court of record may, by virtue of its inherent power over its own records, so long as it