GRAY v. HAWES et al., 8 Cal. 562

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring. , The only question in the case regards the validity of the judgment under which the premises were sold. If void, the sale was invalid, and the sheriff's deed conveyed to the purchaser no title. On the other hand, if the judgment was merely voidable, the sale was valid. To sustain a personal j udgment the Court must have jurisdiction of the subject-matter, and of the person. Whitwell v. Barbier and others, January, 1857.

Where the jurisdiction of the Court as to the subject-matter has been limited by the Constitution or the statute, the consent of parties cannot confer juris-, diction. But when the limit regards certain persons, they may, if competent, waiv§ their privilege, and this will give the Court jurisdiction. If, however, a party has not been brought into Court, and does not of himself come in and waive the necessity of service, the Court has no jurisdiction over him, and the judgment against him is a nullity.

The learned counsel for the plaintiff insists that the District Court was a Court of general jurisdiction; that every presumption is in favor of the proceedings of such Courts; and, unless the want of jurisdiction appears on the face of the record, the judgment must be sustained. This position is, no doubt, correct. The judgment was prima facie good. The proof introduced by plaintiff wJs ample to throw the onus upon the defendants. But when they produced the record of the entire case, it presented a new feature.

From the record, it did not appear that Cheever ever had any notice of the submission, or of the award, or of the judgment, until he came in afterwards, and moved to set aside the same, for the very reason that he had not been properly brought into Court. The fact that he did hot join in the submission is a proof that he was ignorant of the whole matter. When the entire record did not show that Cheever was brought into Court, the proof was sufficient to rebut every presumption in favor of the jurisdiction. The statute provides a way in which parties shall be brought into Court.

If that mode is not followed, they cannot be brought into Court in any other way. They may come in voluntarily. The record must then show, either that the party was summoned in the mode provided, or that he appeared in Court. If records or papers are lost, their contents may be proved. The appearance of Cheever in the Court after the judgment was rendered, and his motion to set it aside, did not cure the fatal defect of a want of jurisdiction. Ilad the Court set aside the judgment, and permitted him to answer to the merits, a judgment subsequently rendered would have been valid.

But the appearance of a party for the purpose of objecting to the prior void proceeding, will not cure it. Diedesheimer and others v. John Brown, October, 1857. The authorities referred to, and quoted in the able brief of plaintiff’s counsel, do not sustain the judgment. bTor does the fact that the judgment was reversed iii this Court upon a ground that would only render the judgment voidable, at all affect the rights of the defendants. There may be several grounds upon which a judgment should be reversed. The reversal upon one ground, does not prove the non-existence of another.

It is unnecessary to express any opinion as to whether the judgment was void, or voidable, as against the other parties. The property sold was the individual property of Cheever, and the judgment being void as against him, the plaintiff’s deed conveyed no title. Judgment affirmed.