Eichhoff v. Eichhoff
Before: Temple
Synopsis
Action to Set Aside Decree Annulling Marriage—Service of Summons—Presumption—Burden of Proof.—In an action to set aside a decree annulling a marriage, upon the ground that the defendant in the action annulling the marriage was not served with summons, and had no notice of the suit, and never appeared therein, and that the judgment was procured by the fraudulent practice of the plaintiff in the action, the mere production of the judgment-roll, showing that a summons was issued, but containing no proof of service, and no memorandum of default, and no appearance for the defendant except by a guardian ad litem appointed by the court, and no recital in the record to the effect that summons had been served, does not raise a presumption that there was no jurisdiction of the court over the person of the defendant against whom the judgment was rendered; but the presumption is to the contrary, that the court did have jurisdiction of the person of the defendant, and this presumption must be overcome by proof, the burden of which is cast on the plaintiff in the action to annul the decree, that summons had not in fact been served in the former action.
Id.—Direct Attack Upon Judgment—Indirect Attack—Equitable Suit. It is only upon a direct attack by appeal from a judgment by default that there is no presumption in favor of the existence of any fact essential to the jurisdiction of the court over the defendant; but, when an action is brought in a court of equity to set aside a judgment at law, the attack, although not collateral, is always indirect, and such an attack does not question or dispute the effect of the judgment as an adjudication, but seeks to be relieved from its operation upon equitable grounds.
Temple, J. This action was brought to set aside a judgment and decree rendered by the superior court of Marin county in 1882, annulling the marriage between Gustave Eichhoff and Melocene Eichhoff.
The complaint shows as a cause of action that in the suit for the annulment of the marriage this plaintiff, defendant in that action, was not served with summons. [46]had no notice of the suit, and never appeared therein, and that said judgment was procured by the fraudulent practices of said Gustave Eichhoff.
At the trial the plaintiff to sustain her allegations put in evidence the judgment-roll in the action for the .annulment of the marriage, the petition for the appointment of a guardian ad litem, and the order appointing the guardian ad litem, and rested. The defendant put in no evidence, and the court thereupon rendered judgment for defendant, and the plaintiff appeals from the judgment. The appeal was taken within sixty days after the rendition of judgment.
The judgment-roll put in evidence shows that a summons was issued, but there was no proof of service. There was no memorandum that the default of the defendant had been entered as required by the code.
There was no appearance for the defendant in the case by answer or demurrer. There is no recital in the judgment to the.effect that summons had been served; but it is stated that a guardian ad litem had been duly appointed for the defendant, and that such guardian appeared in open' court and consented that the action be tried.
Neither in the petition for the appointment of a guardian ad litem, nor in the order appointing the guardian, is there a recital to the effect that the summons had been served on the defendant.
The only question presented on this appeal is whether, under these circumstances, the burden was cast on the plaintiff of proving that summons had not in fact been served on the defendant in the former action, or whether the defendant had the laboring oar.
The question as to the validity of this judgment was once before considered by this court. (In re Eichhoff, 101 Cal. 600.) There the attack upon the judgment was collateral. It was held by this court that the judgment was not void. It was said: “ The fact that the court has rendered a judgment implies a determination by it before it assumed to hear the controversy that it had
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