Weeks v. Garibaldi South Gold Mining Co.

Foote, C. — This is an action to recover a certain sum of money alleged to be due for work and labor done and performed at the defendants' request, in and about certain mining property.

The Garibaldi Mining Company is a foreign corporation, having no managing or business agent, cashier, or secretary resident in the state of California. An effort was made to serve the defendants Spruance and Rodgers by publication of summons under section 412 of the Code of Civil Procedure. It appears, however, that no affidavit of the printer, his foreman, or principal clerk, that such publication took place, as required by subdivision 3 of section 415, Code of Civil Procedure, was made. Hence the proof is lacking of the service of summons, as required by law, and the record does not affirmatively show that the court had jurisdiction to render the judgment against those two persons. It has been held by this court that, upon a direct attack as by appeal, upon the validity of a judgment, it is necessary that the record should show that the court had jurisdiction of the person against whom the judgment was rendered, and that in determining such a question a recital in the judgment cannot be regarded; that upon such a direct attack the recitals in the judginent will not be accepted as a substitute for the proof of service of a summons. (McKinley v. Tuttle, 42 Cal. 577.)

The record on the appeal here consists of the notice of appeal and the judgment roll. (Sec. 950, Code Civ. Proc.) [601]The complaint was not answered by Spruance or Rodgers; hence, so far as concerned them, that roll, if properly made up, should consist of the complaint, the summons, with the affidavit of proof of its service, the memorandum of default, and a copy of the judgment. (Subd. 1, sec. 670, Code Civ. Proc.)

As we have seen, the record here shows an entire absence of any proof of publication of summons. The amended certificate of the clerk of the court filed here shows that the transcript filed in this court “ contains a full, true, and correct copy of the judgment roll in said action,” and “ full, true, and correct copies of all the papers contained in the judgment roll in said action on file in my office.”

It is not, therefore, affirmatively shown by the record that the court below had jurisdiction of the persons of the two defendants heretofore named, and on that account, as to them, it must be held on this appeal, which is a direct attack on the judgment, that the latter is invalid. The case of Mahoney v. Middleton, 41 Cal. 51, cited to us as conclusive against the views we have just expressed, is not in point; there the attack made upon the judgment was collateral, here it is direct.