Lyons v. Roach

Foreclosure of Street Assessment — Summons — Misdescription of Administrator as Executor—Default of Administrator — Judsment against Property of Decedent. — It seems, though not authoritatively decided, that a misdescription of an administrator as “executor” in the summons and entry of default, in an action to enforce a street assessment against the property of a decedent, will not render void a judgment enforcing the assessment upon such property, as against the administrator of the estate, if the complaint charges him as administrator, and the affidavit of service of summons shows that he was served as administrator. It seems that the estate is thus substantially and fairly brought into court through its legal representative.

Id. — Appearance by Attorney — Recital in Judgment — Appeal —■ Judgment Roll. —If the judgment in such action recites that the defendants appeared by attorney, who was present upon the trial thereof, such recital must be taken as prima fade true, upon an appeal from the judgment, if there is nothing in the record to show the contrary; and such appearance on behalf of the administrator of the estate is equivalent to personal service of summons and complaint upon him. Such recital is not inconsistent with or overcome by the failure of the judgment roll to show such appearance. The code does not require the appearance of an attorney, to be made part of the judgment roll, and it is no proper part of the record upon appeal therefrom.

Id. — Amendment of Complaint — Appeal — Parenthetical Statement • in Transcript — Judgment Roll. — The fact that the printed record upon appeal from the judgment in such action contains a parenthetical statement that the complaint was amended by changing “ executor ” to “ administrator ” cannot be considered, if such statement is no part of the judgment roll or of the record in the case; nor would such fact, if properly authenticated, make any difference if the administrator appeared by attorney after the amendment, whether served with the amended complaint or not.

Judgments — Recitals — Collateral and Direct Attack — Appeal — Presumptions. — The main difference between collateral and direct attacks upon a judgment, in respect of the judgment and its recitals, is, that upon collateral attack the record alone can be inspected, and it is conclusively presumed to be correct, while on direct attack the true facts may be shown in contradiction of the record, and thus the judgment itself on appeal may be reversed or modified. But the judgment and its recitals will be presumed to be correct upon appeal, unless the contrary is made to appear. All presumptions not contradicted by or inconsistent with the record upon an appeal from a judgment are in favor of its correctness.'