Herman v. Santee

California Supreme Court Aug 13, 1894 No. No. 19357Published

Before: Belcher

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Holding. The court held that a judgment is not void due to defective proof of service if service was in fact properly made, and that courts may permit the filing of an amended affidavit of service nunc pro tunc to correct the record.

Issues

Whether a default judgment is void when the initial proof of service is defective despite actual service occurring.
Whether a court may allow an amended affidavit of service to be filed nunc pro tunc to support a previously entered judgment.
Whether the failure to provide notice of a motion to file an amended affidavit of service constitutes reversible error when the party appears and argues the motion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is the fact of service which gives the court jurisdiction, not the proof of service.”

“The judgment in question was not void, and the court did not err in permitting the amended affidavit of service to be filed.”

Synopsis

Judgment by Default—Entry of Default—A valid judgment by default may be rendered by the court, though no formal default has been entered, the only purpose of a default being to limit the time during which the defendant may file his answer, which time never extends beyond a trial and judgment.

Id.^Service of Summons—Proof of Service—Jurisdiction—Validity of Judgment.—The fact of the service of the summons and of the copy of a complaint in a civil action gives the court jurisdiction of the person of the defendant, and the proof of service is not essential to such jurisdiction; and a judgment by default rendered in a case where the proof of service was imperfect is not void if the service wafe in fact made.

Id.—Amendment of Record—Proof of Service Nunc Pro Tunc.—The court may allow the proof of service to be amended and filed nunc pro tuna as of the date of the judgment, where such proof appears to have been defective or insufficient when the judgment was entered.

Id.—Notice of Application For Amendment — Waiver.—Where the defendant was present in court when an application was made to file an amended proof of service of summons nunc pro tunc, and raised no objection for want of previous notice of the application, but proceeded to argue the question at length and took an exception to the ruling, his action was in effect a waiver of the notice, and he cannot be heard to complain on appeal of the action of the court on the ground that notice was not given of the application.

Belcher, C. This action was brought to foreclose a mortgage given to secure payment of a promissory note made by the appellant, Milton Santee. On September 8, 1892, a decree of foreclosure was entered as prayed for, reciting that the “ defendants have been duly and regularly summoned to answer unto the plaintiff’s complaint herein, and made default in that behalf, and that the default of each. defendant for not appearing and answering unto plaintiff’s complaint has been duly and regularly entered herein.” Subsequently, appellant gave notice of a motion to vacate and set aside the decree, so far as it provided for a deficiency judgment against him, upon the ground that previous to the institution of the action he had been discharged from the indebtedness sought to be enforced by a discharge in insolvency. The motion came on to be heard on September 1, 1893, both parties being present in court by their attorneys. Before the hearing commenced the respondent, without any previous notice, presented to the court an amended affidavit of service of the summons and complaint in the case, and asked for an order that the same be filed nunc pro tunc as of September 8, 1892, and made a part of the judgment-roll. The attorney [522]for appellant objected to the order asked for, and stated that: “As the decision of the motion would in his judgment be decisive of the motion made to vacate the judgment by defendant Santee, he would like permission to introduce his authorities upon the motion before the court.” Thereupon the motion was argued “ at length,” and during the course of the argument the attorney stated that he appeared as amicus curies. After the argument was concluded the court granted the motion, and the appellant excepted to the ruling.

The appeal is from the judgment and the order granting respondent’s motion.

The summons was served by a person other than the sheriff, and the affidavit of service, as originally made and returned, was defective and insufficient because it did not state that the affiant was over the age of eighteen years at the time of the service.

The appellant contends that because the affidavit of service was insufficient the clerk had no authority to enter the default, and the court had no jurisdiction to enter the judgment, and that both the default and judgment were void.

It is true that the clerk was a mere ministerial officer, and could perform only ministerial duties. Conceding, therefore, that in the absence of due proof of the service of the summons the clerk had no right to enter the default, still that fact is unimportant, and can cut no figure in the decision of the case. A valid judgment by default may be rendered by the court, though no formal default has been entered. “ The only purpose of a default is to limit the time during which the defendant may file his answer, and that time never extends beyond a trial and judgment.” (Drake v. Duvenick, 45 Cal. 463.)

Herman v. Santee

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