Riverside County v. Stockman

BRITT, C. Action to condemn lands for purposes of a highway, under the provisions of the Code of Civil Procedure relating to eminent domain. Ten defendants are named in the complaint; among them P. J. Stockman and another, who are alleged to be executors of the estate of one Mathew Byrne, deceased. Service of summons and copy of complaint was made on both of said executors in December, 1895. Afterward, plaintiff filed amendments to its complaint—the first on February 24, 1896, and a second on March 12, 1896; it may be conceded that both these amendments were of matter of substance. Said executors never answered either the original complaint or the same as amended, nor does the record—which consists of the judgment-roll alone—contain any evidence beyond the recitals presently to be mentioned that said amendments were served on the executors. On April 14, 1896, the clerk entered the default of said executors, reciting that they had failed to answer the complaint on file within the time allowed by law; on the same day the action was tried on issues raised by answers of other defendants, and plaintiff obtained judgment. The judgment recites that said executors were "regularly served with summons and complaint,” and that their defaults for not appearing were regularly had and taken. They have appealed from the judgment, and assign for error that they were not served with the amendments to plaintiff’s complaint.

There is no doubt of the general proposition that an amendment to a complaint must be served on all the defendants to be affected thereby. (Linott v. Rowland, 119 Cal. 452, and cases cited.) But the question here is, whether the record presented shows that such service was not made in this instance. The judgment recites that the executors were regularly served with the complaint, and that their defaults were regularly had and [224]taken—which could not be unless the amendments had been duly served on them. The statute concerning the contents of the judgment-roll in such cases does not require the proof of service of amended pleadings to appear therein (Code Civ. Proc., sec. 670, subd. 2), and in our opinion it must be presumed—in the absence of affirmative showing to the contrary—that the amendments were regularly served and that evidence thereof was before the court when it made its decree. Such, in effect, was the ruling in Livermore v. Webb, 56 Cal. 489, 492, and the ease accords with the principle which ascribes verity to a judgment and requires an appellant to make its error appear. In Thompson v. Johnson, 60 Cal. 292, a judgment was reversed because of failure to serve an amendment upon a defaulting defendant, and language was employed in the opinion of the court which seems on cursory reading to support -the inference that the judgment-roll must affirmatively show service of the amendment in such a case; but the opinion shows further that the court understood the order granting leave to amend as itself limiting the service to a single defendant—one who was not in default. In that view, of course, no presumption ought to lie that service had been made when the trial court had decided that it need not be made. Ho such order appears in the record' before us, and Thompson v. Johnson, exceptional in its circumstances, is not an obstacle to a decision of the present case in accordance with the broader analogy illustrated by Livermore v. Webb.