Kahn v. Matthai

Searls, C. This is an appeal from a judgment of the superior court in and for the city and county of San Francisco foreclosing a mortgage, executed by the defendant upon certain real estate in said city and county, to secure the payment of a promissory note made by defendant January 17, 1891, for two thousand dollars, payable to the plaintiff Sophie Kahn,' with interest as specified, one year after date.

Defendant appeals from the judgment, and brings the cause up on the judgment-roll, without any bill of exceptions.

The complaint was filed January 3, 1894, and a summons issued,'which, not being personally served, on February 20, 1894, an order for publication of sum' mons was made, upon due proof of publication of which, and upon proof that a copy of said summons and copy of the complaint had been forwarded to defendant by United States mail prepaid, etc., the default of defendant for failure to answer was entered May 27, 1895, and thereafter and on January 6, 1896, judgment was entered by the court in the usual form for foreclosure of the mortgage. The original summons is not found in the judgment-roll.

Two points are urged in favor of reversal: 1. That the judgment and clerk’s entry of default are void for want of return of summons; 2. That the judgment is void because not supported by a sufficient affidavit for publication of summons.

Upon the first point made, it may be remarked that this appeal is a direct attack upon the judgment. To say that a judgment is void for want of return of the summons must be tantamount to saying that the judgment-roll fails to show that the court obtained jurisdiction of the defendant, and hence that the judgment is void.

[691]The evidence on the subject of jurisdiction of the person of the defendant in the present case, as disclosed by the roll, is as follows: 1. The affidavit for publication of summons shows that a summons issued; 2. The order of publication shows the same thing; 3. The affi-, davit of the printer showing publication contains a copy of the summons; 4. The affidavit of Isadore Harris shows that he mailed a copy of the summons and copy of the complaint, etc., to defendant at her place of residence; 5. The decree states, among other things, “that the court, having heard all the evidence and proofs, .... and it appearing therefrom to the satisfaction of the court: 1. That Mary E. Matthai, the above-named defendant, has been duly and regularly summoned to answer under the plaintiffs’ complaint herein, and had made default in that behalf, and that the default of the defendant .... has been duly and regularly entered,” etc.