Stockwell v. McCracken , 109 Mass. 84 ( 1871 )

Wells, J.

This action upon a joint judgment in California, against the defendants Blarney and McCracken, is properly maintained against Blarney alone, under the Gen. Sts. e. 126, § 14, McCracken not being an inhabitant of this Commonwealth and not having been served with process.

The record of the judgment shows service of process, in that suit, upon Blarney in California, and was sufficient proof thereof, primé facie. The admission of testimony to prove actual service upon him, in support of the primé facie evidence from the record, after the defendant had produced testimony to contradict the recital therein, was a proper exercise of the discretion of the presiding judge. The exception on that point is not pressed here.

The defendant contends that the judgment is void as against McCracken, for want of sufficient service of process upon him, and because of an alleged irregularity in entering the judgment ipon default; and, as it is a joint judgment, being void as to one, it must be void as to both.

Blarney was a citizen of California. It does not appear, and is not alleged, that McCracken was not also a citizen of that state; although he was out of the state at the time of the service of the summons in the suit there. No question arises therefore of the jurisdiction of the court on the ground that either party was not subject to its right of jurisdiction. The validity of the judgment must depend upon the laws of California. All presumptions are to be taken in its favor. The burden is upon the defendant to show its invalidity.

We are of opinion that the defendant fails to show any invalid^ ity in the judgment, even as against McCracken. Service upon him, as an absent defendant, was made by publication, under an order of the court, in compliance with the statutes of California. Those statutes require that in such case the summons shall be published not less than three months, and that the defendant shall be allowed forty days from the completion of the service, within which to appear and answer. The defect relied on is, that judgment was entered, upon default, before the expiration of that period; to wit, at the end of thirty-eight days from the date of the completion of the service. For this he relies upon an affidavit filed in that case, purporting to be for proof of service of the order of publication, and stating the publication to have been made for three months, commencing November 15,1862, and ending February 15, 1863. The judgment was entered March 26, 1863. Whether sufficient notice had been given, and sufficient time had elapsed, were questions of fact, upon which the affidavit was not conclusive. Whether the three months intended were lunar or calendar months; and if the latter, whether the 15th day of February was to be excluded from the three months, and, with the day of the default, included in the computation of forty days from completion of the service, were questions of construction and application of the statutes of that state; upon which, as well as upon the questions of fact, that court must be held to have passed in rendering the judgment. Its decision thereon is conclusive.

But if an irregularity were shown to exist, we are referred to no statute or rule of law in California, under which the judgment would thereby be rendered void; or even voidable by Blarney. The presumption, from the law as it exists here, would be otherwise. And if voidable, both defendants being citizens of California and subject to the jurisdiction of its courts, it is not at all clear that it could be avoided in another state, or in any other manner than by direct proceedings for its reversal in that state. Hendrick v. Whittemore, 105 Mass. 23. Henderson v. Staniford, Ib. 504.

We find however, in § 32 of the same chapter of the laws of California cited by the defendant, certain provisions not referred to by either side, which authorize a plaintiff, in a case like this, to proceed without further service upon an absent defendant; and, if the action be upon a joint contract, to enter judgment against both, so far as to bind the joint property of both, and the separate property of the defendant served ; or if the defendants are severally liable, he may proceed against the defendant served in the same manner as if he were the only defendant,. Under these provisions, if still in force there, the judgment would proceedings to make it good against McCracken might be found to be. Catskill Bank v. Hooper, 5 Gray, 574.

Exceptions overruled.