Summary
In Gregory v. Ford, 14 Cal. 138, [73 Am. Dec. 639], it is said: "Nor is it charged that the defendant had any defense to the note, which was the foundation of the action; but, on the contrary, there is evidence that the defendant owed the debt, and that it is still due.
Summary of this case from Bell v. ThompsonOpinion
Rehearing Denied 14 Cal. 138 at 143.
Appeal from the Tenth District.
Plaintiff had judgment. Defendants appeal.
COUNSEL:
1. The return of the officer upon the summons in the case of Goodwin v. Gregory, was conclusive, and could not be attacked in another action. The only remedy of the party is against the officer. (11 Foster, Pa. 9-13; 3 Wend. 204; 4 Dana, 150; 8 How. Pr. 355, 356; 4 Mass. 479; 11 Id. 165; 17 Id. 600; 10 Gill & J. 858; 4 Ala. 279; 3 Zab. 236; 6 Fost. 99; 7 Wend. 398; 1 Pet. C. C. 441; 14 Ill. 64, 65; 5 Cal. 56; 7 Id. 54.) Such return cannot be attacked, even in chancery. (5 Litt. 199.) Nor in a collateral proceeding to set aside the judgment. (26 Vt. 748, and cases there cited.) It can only be attacked in an action in which the officer making the return is a party.
2. If the executions were improperly issued the plaintiff should have proceeded by motion. (4 How. Pr. 352; 11 Id. 366; 1 Barb. Ch. Pr. 619.)
G. N. Swezy, for Appellants.
Reardan & Smith, for Respondent.
1. If we admit that the officer's return is conclusive, except in an action for false return, etc., still the question whether a paper purporting tobe a record is so or not, is always open; and the Judge, who is presumed to know the handwriting of the officers of his Court, cannot be concluded by that which he is satisfied is a forgery.
There is no question in this case as to the right of impeaching the Sheriff's return in a collateral proceeding; the only question is, was it the return of the officers, or was it not? The Court below, upon an inspection, decided that it was not his return; in effect, that so much as showed a service on Gregory was interlined by a different person than the one making the return, in a strange handwriting, etc., and that it bore upon its face evidence of having been tampered with. (4 Phil. on Ev. 272.)
2. Appellants contend that it was irregular to proceed by bill in equity to set aside an execution, but that the matter should have been brought before the Court by motion.
The defendants were not prejudiced by the plaintiff's waiving a summary remedy; besides, as the plaintiff was compelled to file his bill to set aside the judgment, it was proper for him to have everything connected with the matter settled in that motion.
3. The second execution was improperly issued. (5 Hill, 572; 8 Johns. 337; 5 Conn. 417; 3 Wend. 382.)
4. If it should be urged that the complaint is defective in not showing that Gregory had a good defense to the original action, we answer that the rule requiring such an averment before the Court will entertain jurisdiction, does not apply, where as in the case at bar, the defendant in the original suit was not served with summons and had no notice of the action. The Court has no jurisdiction over the person of the defendant until he be served with the process of the Court; a judgment entered by a Court not having jurisdiction over the defendant, is void --not merely irregular or erroneous, but absolutely void. (4 Conn. 381; Whitwell v. Barbier , 7 Cal. 64; 11 Wend. 654; 2 Yerger, 377; 5 John. 40.)
But if not sufficient to authorize all the relief prayed for, it is good to sustain an injunction.
The plaintiff avers and proves, that a judgment was entered against him without notice; that upon this void judgment an execution was issued and placed in the hands of the Sheriff--one of the defendants--who is about to sell his property. Now, if the judgment be void, the execution must be void, and the Sheriff, therefore, ought to be restrained from proceeding under it. The plaintiff is entitled to this relief, if no other. (Walker v. Wynne, 3 Yerger, 62; Caruthers v. Hartsfield, Id. 366.)
But no objection was made in the Court below, nor is any made here, to the jurisdiction of the Court; even if raised there for the first time, it would be too late after answering to the merits. The objection should have been taken by demurrer. (4 How. Ark. 560; 3 Johns. Ch. 377; 4 Cow. 727; 2 Paige, 399, 509; 4 Johns. Ch. 290; 2 Id. 369.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, the following opinion was delivered by Baldwin, J.--Cope, J. concurring:
We deny the petition in this case. Our opinion did not misapprehend any material fact in the record. The bill does not charge that there was no service of process upon the plaintiff, who was defendant in the case, the judgment in which is sought to be enjoined. The general charge is made that the plaintiff was not served with process, but the bill does not charge that the Sheriff did not return the summons as served. There is nothing necessarily inconsistent in the asserted fact that the plaintiff was not served with process, and the return of the Sheriff that he was. The judgment of the Court recites that the defendant was served with process, and the fact that there appeared, years afterward, to be some erasure or interlineation on the return of the process, in the absence of a direct attack upon it for fraud or forgery, or alteration, is entirely too small a circumstance to justify a finding that the return was not regularly made by the officer. If we were to hold that this was sufficient to nullify the return, the consequence might be to shake confidence in, and impair the effect of, judicial proceedings.
The case made by the bill is as we put it in the opinion--the case, namely, of a defendant in a judgment, impliedly confessing the justice of the claim of the creditor, and seeking in equity to set aside the judgment by merely averring that he was not actually served with process, and we think we showed, both from reason and authority that this cannot be permitted.
Rehearing denied.