NELLIE RUE, Appellant, v. JAMES QUINN Et Al., Defendants; MADELINE LOUISE EMERY, Sued as LOUISA MUNROE, Respondent

California Supreme Court

L.A. No. 839.

November 19, 1902

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Garoutte, Harrison

APPEAL from an order of the Superior Court of San Diego County setting aside a judgment by default. E.S. Torrance, Judge. The facts are stated in the opinion of the court.

Judgment—Motion to Vacate—Want op Jurisdiction op Person-Lapse op Time.—A motion to set aside a judgment upon the ground that it appears upon the face of the record that the court had no jurisdiction of the person of the defendant is a direct attack upon the judgment, and is not barred by mere lapse of time.

Id.—Burden op Proop—Direct and Collateral Attack.—A judgment void for want of jurisdiction appearing from the judgment record may be attacked either directly or collaterally,—the main distinction being that upon a direct attack the burden is upon the party claiming the judgment to be valid to show jurisdiction, while upon collateral attack the burden is upon the attacking party to show by the record that the court did not have jurisdiction.

Id.—Publication op Summons—Appidavit by Attorney.—An affidavit to obtain an order for the publication of summons made by the plaintiff's attorney is competent to establish the facts necessary to be shown to obtain the order. It is not necessary that there • should be also an affidavit on the part of the plaintiff, especially where the plaintiff is absent from the county, and the facts verified are within the knowledge of the attorney.

Id.—Dub Diligence to Find Dependant—Failure—Decision op Fact. —If the facts set forth in the affidavit have a legal tendency to show both that diligence was exercised on behalf of the plaintiff in seeking to find defendant within the state, and that after the exercise. of such diligence he could not be found, the decision of the judge that the affidavit shows the same to his satisfaction has the same effect as his decision upon any other matter of fact submitted for his judicial determination.

Id.—Facts Stated upon Information—Hearsay.—Although the facts stated in the affidavit are bas°d upon information or hearsay, that does not render it of no legal effect to authorize the court to be satisfied therefrom, nor justify a disregard of his conclusion, or render his order void. From the nature of the question to be determined, the evidence thereon must to a very great extent be hearsay, and the number and character of the persons inquired of must in each case be determined by the judge.

Id.—Diligence a Relative Term.—Diligence is in all cases a relative term, and what is due diligence must be determined by the circumstances of each case.

Id.—Return op Summons—Authority to Order Publication.—The authority of the court to order service of the summons by publica» tion is not taken away by reason of the fact that the summons has been previously returned to the clerk’s office. The provision for an alias summons does not impair the power of the court to authorize the summons to be withdrawn for further service, or for service by publication.

Stearns Sweet, and Sylvester Kip, for Appellant. As the motion to vacate the judgment was not made until more than four years after its entry the court had no power to grant it unless the judgment was void upon its face. (People v. Temple, 103 Cal. 447 ; Jacks v. Baldez, 97 Cal. 91 ; People v. Harrison, 84 Cal. 607 ; Moore v. Superior Court, 86 Cal. 495 ; People v. Goodhue, 80 Cal. 199 .) The judgment is not invalid because of the publication of summons after it had been returned and filed. (Hancock v. Preuss, 40 Cal. 577 ; Coffin v. Bell, 22 Nev. 169 . [fn1] ) The showing of diligence was sufficient to sustain the order of publication. (Seaver v. Fitzgerald, 23 Cal. 85 ; Forbes v. Hyde, 31 Cal. 342 ; Ligare v. California etc. R.R. Co., 76 Cal. 610 ; Dunlap v. Steere, 92 Cal. 344 ; [fn2] Harrison v. Beard, 30 Kan. 532 ; Harris v. Claflin, 36 Kan. 543 ; Matter of Faulkner, 4 Hill, 598; Miller v. Brinkerhoff, 4 Denio, 118; [fn3] Titus v. Relyen, 17 How. Pr. 269; Van Wyck v. Hardy, 39 How. Pr. 392, 4 Abb. App. 496; Skinnion v. Kelly, 18 N.Y. 355 ; Howe Machine Co. v Pettibone, 74 N.Y. 68 ; Belmont v. Cornen, 89 N.Y. 256 ; Kennedy v. New York etc. Trust Co., 101 N.Y. 487 ; McDonald v. Cooper, 32 Fed. Rep. 745.) That the affidavit need not be made by the plaintiff personally, and that no showing as to his knowledge of the defendant's residence is necessary, has been decided in the following cases: Bird v. McClelland etc. Co., 45 Fed. 458; Palmer v. McCormick, 30 Fed. 82; Banta v. Woods, 32 Iowa, 469; Young v. Schenck, 22 Wis. 556 ; Storm v. Adams, 56 Wis. 137 . William F. Herrin, Amicus Curiae. Under the former practice act there could be no publication of an alias summons, and the return of the summons was necessary to satisfy the court, which had power to order the summons to be delivered for further service. (Hancock c. Preuss, 40 Cal. 577 .) The alias summons provided for in section 408 of the Code of Civil Procedure is permissive merely, and cannot affect the power of the court to order the publication of the original summons after its return. (17 Ency. Plead. and Pr., p. 50; Woodward v. Brown, 119 Cal. 301 . [fn1a] ) L.L. Boone, and Sam Ferry Smith, for Respondent. The affidavit is hearsay, and contains no sufficient evidence to support it. (Kahn v. Matthai, 115 Cal. 689 ; Braly v. Seaman, 30 Cal. 610 ; Ricketson v. Richardson, 26 Cal. 152 ; Neff v. Pennoyer, 17 Fed. Cas. 1279; Marx v. Ebner, 180 U.S. 314 ; Roller v. Holly, 176 U.S. 398 .) The summons having been returned, was functus officio. (Fanning v. Foley, 96 Cal. 336 .) The court has no jurisdiction to make an order of publication in advance of the issuance of summons. (People v. Huber, 20 Cal. 81 .) [fn1] 58 Am. St. Rep. 738. [fn2] 27 Am. St. Rep. 143, and note. [fn3] 47 Am. Dec. 242. [fn1a] 63 Am. St. Rep. 108.