Herman v. Santee

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The summons was served by a person other than the sheriff, and the affidavit of service, as originally made and returned, was defective and insufficient because it did not state that the affiant was over the age of eighteen years at the time of the service.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

•The important question then is, Was the judgment void? Section 416 of the Code of Civil Procedure declares that: “ From the time of the service of the summons and of a copy of the complaint in a civil action, .... the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings.” In Pico v. Sunol, 6 Cal. 295, it is said: “Jurisdiction of the person of defendant is acquired by the service of process, and dates from such service, and not from the return.” And in Drake v. Duvenick, 45 Cal. 463, it is said: “The fact of service was material, and from the time service was made the court was deemed to have acquired jurisdiction. The return of service might be formal or informal, perfect or imperfect, still if service were in fact made, the court acquired jurisdiction of the person of the defendant.” So in In re Newman, 75 Cal. 220, 7 Am. St. Rep. 146, it is said: “It is the fact of service which gives the court jurisdiction, not the proof of service.”

The amended affidavit of service, which the court allowed to be filed, was in all respects in proper form, and showed that the appellant was regularly served with a copy of the summons and complaint. None of the facts stated in the affidavit are controverted, and it must be held, therefore, that from the time of the service the court acquired jurisdiction of the parties to the action.

The question then arises, Did the court err in allowing the proof of service to be amended and filed nunc pro tunc as of the date of the judgment? Upon this subject Mr. Freeman, in his work on Judgments (4th ed., sec. 89 b), states the law as follows:

“If the return upon the summons or other writ designed to give the court jurisdiction over the person of the defendant is omitted or incorrectly made, but the facts really existed which were required to give the court jurisdiction, the weight of authority at the present time permits the officer to correct or supply his return until it states the truth, though by such correction a judgment apparently void is made valid. Though the proof of the service of process does not consist of the return of an officer, the like rule prevails. Thus, if a summons has been published in the manner required by law, but the proof of publication found in the files of the court is defective, the court may, on the fact of due publication being shown, permit an affidavit to be filed showing the facts, and when so filed it will support the judgment as if filed before its entry.”

In opposition to this view and in support of his theory appellant cites Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, in which, on page 401, it is said:

“The default and judgment were void, not because there was no service, but because there was, at the time of entering the same, no proof of service.”

This language is not in harmony with the weight of authority upon the subject, and, in our opinion, it dees not state the law correctly. The case is reported in the American State Reports, volume 21, page 52, and, in a note commenting upon it, it is said:

“The court declares, in effect, that it is not the service of process which gives courts jurisdiction, but the proof of such service; that if the proof is defective it is immaterial that the service was perfect; and the proof being imperfect there is no way in which the judgment can be sustained by showing the facts regarding the service of process as they really existed when it was entered. The very reverse of this we apprehend to be the law. It is the fact of service of process which confers jurisdiction, and it is a familiar practice in California, as well as elsewhere, when the proof of such service is absent or defective, to permit it to be amended or supplied.”

And again: “To support judgments entered upon insufficient proof of service of process, or without the proof of such service appearing in the record, courts have uniformly permitted such proof to be amended or supplied, not for the purpose of authorizing them to enter new judgments based upon such proof, but to show that judgments previously entered were not entered without jurisdiction, and are not, and never were, void,” citing Allison v. Thomas, 72 Cal. 562, 1 Am, St. Rep. 89, and numerous other cases.

We conclude, therefore, in view of the authorities, that the judgment in question was not void, and the court did not err in permitting the amended affidavit of service to be filed.

It is further claimed that the application to file the amended affidavit was without notice, and the order authorizing the filing was therefore erroneous. But conceding that previous notice of the application should have been given, still we are unable to see that appellant was in any way prejudiced by the failure. He was present in court when the motion was made, and raised no such objection then. On the contrary, he proceeded to argue the question at length, and when it was decided against him took a general exception to the ruling. This was, in effect, a waiver of notice, and appellant cannot now be heard to complain of the action of the court on this ground.

We discover no prejudicial error in the record, and therefore advise that the judgment and order appealed from be affirmed.

Searls, C., and Temple, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Garoutte, J., Harrison, J., Van Fleet, J.