Summary
reversing judgment against debtor in action by creditor to enforce judgment where judgment was void for lack of service of process on defendant
Summary of this case from Kory v. LynchOpinion
No. 11676
May 20, 1889.
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
J. C. Bates, for Appellant.
Appearance of an unauthorized attorney may be shown in assailing a judgment for want of jurisdiction. ( Shelton v. Tiffin, 6 How. 186; Bordutha v. Goodrich, 3 Gray, 509; Ferguson v. Crawford, 70 N.Y. 253; 26 Am. Rep. 589; Robson v. Eaton, 1 Tenn. Rep. 62; Reynolds v. Fleming, 30 Kan. 106; 46 Am. Rep. 86.) The judgment may be shown to be void for want of jurisdiction. (Hanswirth v. Sullivan, 6 Mont. 203; Earle v. McVeigh, 91 U.S. 507; Clark v. Little, 41 Iowa 497.)
Thompson Thompson, for Respondent, cited People v. Mariposa Company, 39 Cal. 683; Boston Tunnel Company v. McKenzie, 67 Cal. 485; Tyrrell v. Baldwin, 67 Cal. 1; Foote v. Richmond, 42 Cal. 439; Civ. Code, sec. 19; Golden Gate M. Co. v. Superior Court, 65 Cal. 187; Ayres v. Palmer, 57 Cal. 316.
This was an action upon the judgment of a court of general jurisdiction. The defendant pleaded in-defense that said judgment had been obtained without service upon him or any authorized appearance on his behalf. The court below found these facts to be true, but rendered judgment against defendant, upon the ground that he did not show that he had a meritorious defense to the original action. We think that this was error.
It is true that a court of equity will not give relief against a judgment unless it be shown that the complainant had a defense upon the merits. Equity in such case will simply hold its hand and leave the parties to their rights at law. It is also true that at law a defendant cannot collaterally assail a judgment unless it be void on its face. This was held after careful consideration in Carpentier v. Oakland, 30 Cal. 439, and the general doctrine of that case has recently been approved. ( Hodgdon v. S. P. R. R. Co., 75 Cal. 648.) And it is in accordance with the preponderance of authority elsewhere. (See Freeman on Judgments, 3d ed., sec. 116.) In New York, where a contrary doctrine seems to prevail, it is admitted that the rule there rests upon the local law of that state, and "finds no support in adjudications elsewhere." ( Ferguson v. Crawford, 70 N.Y. 267; 26 Am. Rep. 589.) And we do not understand that our statute has changed the rule. Section 1916 of the Code of Civil Procedure simply means that evidence is admissible to impeach the judgment in the cases allowed by law, not in all cases whatsoever.
But this rule is not that a judgment which is void will be enforced as if it were valid, but that it cannot be shown to be void except in certain ways. If the party, however, should admit the facts which show the judgment to be void, or if he should allow them to be established without opposition, then, as a question of law upon such facts, we do not see why the case is not like that where a judgment is void upon its face. In the present case, the findings establish the fact that there was no service of summons upon or authorized appearance by the defendant. And none of the. evidence is brought up, nor does the question appear to have been raised by exception or demurrer, or in any other way. The facts, therefore, must be taken to be established by the record beyond all controversy. And upon such facts the law is, that the judgment is void. ( Baker v. Riordan, 65 Cal. 371, 372; Merced Co. v. Hicks, 67 Cal. 109.) The judgment sued on, being shown to be absolutely void, cannot be held to be valid, or to be a cause of action.
We advise that the judgment appealed from be reversed, and the cause remanded, with directions to enter judgment for the defendant Jones.
HAYNE, C., concurred
FOOTE, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment is reversed, and cause remanded, with directions to the court below to enter judgment for the defendant Jones.