In re Estate of Eichhoff

Harrison, J.— Upon the death of Gustave Eichhoff, Magdalena Eichhoff, claiming to be his widow, applied for letters of administration upon his estate. Her application was resisted by the appellant, a son of the deceased, who also made application that letters of administration be issued to himself. The court granted the application of Magdalena, and denied that of the appellant.

The deceased and Magdalena were married May 25, 1882, and from that time lived together as husband and wife until his death in February, 1893. In 1863 he had been married to Milceon Winike, and they had lived in Stockton as husband and wife until 1876, during which time the appellant and five other children were born to them. In 1876 the wife was committed to the insane asylum at Stockton, and she is still living as an inmate of said asylum. In April, 1882, the deceased brought an action against her in the superior court of Marin county to procure a decree annulling his marriage with her upon the ground of fraud on her part in concealing the fact that she was insane at the time of their marriage, and a decree to that effect was rendered by that court in July, 1882. Upon the present application for letters of administration the judgment-roll in that action was introduced in evidence, and it is claimed by respondent that, by virtue of this judgment, her marriage with the deceased constituted her his lawful wife, while the appellant maintains that it fails to show that the marriage between his mother and the deceased was ever annulled. The judgment-roll shows that the complaint was filed April 21, 1882; that on the same day a summons was issued thereon, and that it was returned April 25,1882, without any proof of service; that on the 17th of July, 1882, after hearing evidence upon [602]the averments of the complaint, the court rendered its judgment “ that the marriage between the plaintiff, Gustave Eichhoff, and the defendant, Milceon W. Eichhoff, be and .the same is hereby, annulled, and said parties are, and each of them is, restored to the status and position of unmarried persons.” There is also in the record an affidavit of the plaintiff, filed on the same day with the return of the summons, to the effect that the defendant was then confined in the insane asylum at Stockton, and asking for the appointment of a guardian ad litem, together with the order of the same date making such appointment; but as these documents do not form a part of the judgment-roll, they cannot be considered in determining the effect of the judgment. There is no recital in the judgment, or in any part of the record, of any service upon the defendant or appearance in her behalf, and the ground of the appellant’s contention is, that as the evidence offered did not show affirmatively that the superior court had any jurisdiction over the defendant, the court was not authorized to determine therefrom that the marriage between her and the deceased had been annulled; while on the part of the respondent it is claimed that the record of the judgment and of its rendition raises the presumption that the court had acquired jurisdiction of the defendant in some form authorized by law before it entered upon the hearing of the cause and exercised its judicial power. The appellant herein made no offer to show that the defendant in the former action had not in fact been served with the summons, so that we are not called upon to determine whether it would be competent to show by extrinsic evidence that the court did not in fact have jurisdiction over the defendant or to contradict the presumption which arises when the record is silent upon that subject. The question sharply presented for determination is whether a domestic judgment, wherein both of the parties thereto are residents within the state and where there is no proof of service or appearance on the part of the defendant, and which is itself silent con-