JOHN A. PECK v. LEVI STRAUSS and HENRY L. DAVIS, 33 Cal. 678

By the Court, Shafter, J.: The question presented is whether the Court acquired jurisdiction over Strauss and Davis, defendants in a foreclosure suit brought against them by the plaintiff, in the District Court of the Fourth Judicial District, March 8th, 1862. The question arises upon an attempt to impeach the judgment in that suit collaterally.

The Clerk’s entry of default in the suit states “ that the defendants having been regularly served with process, and having failed to appear and answer the plaintiff’s complaint on file herein, the legal delay for answering having expired, the default of said defendants in the premises is hereby entered according to law.” The judgment recites that the “ cause having been brought on to be heard upon the complaint therein taken as confessed, the default of the defendants for not appearing or answering having been duly entered, now,” etc.

The proof of service found in the judgment roll and forming part of it, was the affidavit of Alexander Boyd, dated March 1st, 1862. The affidavit shows a personal service by the affiant on Davis, March 10th, 1862, in the City and County of San Francisco, and on Strauss on the 19th of the same month at the same place, where both said parties resided.

The affiant also swears that “ he is a white male citizen of the United States of America, of the age of twenty-one years and upward, and competent to be a witness on the trial of the above entitled action.” The only point of objection to the proof of service is that the affidavit fails to show that the affiant was adult and a citizen at the date of the services respectively. It is apparent from the above statement that the service in the action was not contrary to but “ according to the course of the common law,” if that phrase can be considered of any value for the purposes of definition.

The defendants were domiciled in California, and the service on each was both intra-territorial and personal. The case is therefore broadly within the rule that the jurisdiction of superior Courts, in the matter of judgments rendered by them, will be presumed unless the contrary affirmatively appears upon the face of the record. The fact that the service in Peek v.

Strauss et al. was not by the Sheriff, but by an indifferent person, does not establish that the service was contrary to the course of the common 'law in the just meaning of that phrase; nor does the fact that the service was proved by an affidavit instead of an official certificate. A statute method of doing a thing may differ from the common law method of doing the same thing, in matters of circumstance, and still be like it in substance. If the mode of the statute is fairly within the analogy of the common law mode, then it is “ according to the course ” of the latter.

That is to say, if there be a general resemblance on points of essential quality, circumstantial diversity will not hurt. The code has made numerous changes in the rules of pleading, evidence and practice, as they existed at common law; still these alterations have been so far conceived in the common law spirit and fashioned on the common law models, that neither bench nor bar hesitate to speak of our superior Courts as proceeding according to the course of the common law.

Still, if the question of correspondence is to be determined by any other test than the one suggested, it must be apparent that this general opinion is a mistaken one altogether. The affidavit of Boyd, so far as it goes, bears out the intendment that everything was rightly acted; and wherein it comes short the omission is more than compensated by the recital in the judgment that “ the default of the defendants was duly entered.” (Alderson v.

Bell, 9 Cal. 315.) A complaint was regularly filed against the defendants, and summons was regularly issued thereon; the defendants were fully advised of the complaint and its contents by certified copies placed in their hands. They were also advised by like copies of the summons that process had been issued against them, warning them to appear and answer, or that they would be defaulted by a day named. They knew, in short, that they were pursued—where, how, by whom, and for what; and they knew further that the white man who served them might turn out to be a citizen twenty-one years old.

They were thus fairly put upon inquiry as to Boyd’s capacity to serve the papers on them. They knew that in due course he would make and file an affidavit which ought to speak fully to the question. They knew if the affidavit should come short of showing that the affiant had all the points of competency named in the Act, that they, or either of them, could move to quash; and they knew that also in that event the return would be open to amendment.

We consider that the service of the certified copies named gave the Court jurisdiction in personam, to try and determine every description of question, whether dilatory or in chief, that could by possibility arise in the action. The defendants might have appeared and made the motion suggested, and if the decision had been adverse it might have been reviewed in the action on appeal. By standing aloof the defendants both invited and compelled the judgment which they now undertake to assail. The distinction between a want of jurisdiction and an irregularity in procuring it was asserted in Whitwell v.

Barbier, 7 Cal. 63. In that case judgment had been taken by default. The process required the defendant to answer in an interval less than that to which he was by law entitled. It was considered that the slip was but an irregularity to be availed of by motion to quash or to be presently corrected by a grant of further time to answer, or to be made the basis of a motion in arrest, or for a new trial, or of proceedings in error. The irregularity in that case lay in the summons. In Dorente v.

Sullivan, 7 Cal. 279, the defect was in the affidavit of service, and was identical with the defect in the affidavit of Boyd, only that the affiant there failed to state any of the facts of competency named in the statute. It was held to be but a mere irregularity, and that the judgment could not be attacked collaterally on the ground of it. A return will give jurisdiction, even though it be false (Putnam v. Mann, 3 Wend. 204); for the power and duty of the Courts to proceed is put, not upon the truth, hut upon the apparent truth of the return; and were it otherwise they could never proceed at all.

The point made by the appellant that these doctrines have no application where service is evidenced by an affidavit is not well taken. Whether the proof of personal service is by affidavit or by Sheriff’s certificate, the next step in the proceedings, if there be no appearance, is the entry of a default. The decision in Spaulding v. Spaulding, 7 How. Pr. 297, is not opposed to this view. The counter affidavit in that case was offered and rejected in the proceeding in which the judgment was rendered. Judgment affirmed. Neither Mr. Justice Rhodes nor Mr. Justice Sanderson expressed an opinion.