Drake v. Duvenick

Citations

• 45 Cal. 455

Syllabus

<p>Collateral Attack on Judgment Foreclosing a Mortgage.—Where there is attached to a decree foreclosing a mortgage, a stipulation, signed by the attorneys, consenting that it may he entered as the decree in the case, and the decree is filed with the Clerk, and is entered and copied at length in the Judgment Record Book, and at the foot of the record is the entry, “ Decree, rendered on the 15th of October, 1856,” there is nothing which shows that the judgment was not the act of the Csurt, and it cannot he successfully attacked in a collateral proceeding.</p> <p>Collateral Attack on Judgment.—In a collateral attack on a judginent of a Court of superior jurisdiction, all intendments are indulged in its support, and whatever is upon its record is presumed to have been rightfully done.</p> <p>Entering Up a Default.—It is not necessary that the default of a party should be actually entered up by the Clerk before a judgment can he taken against him.</p> <p>Irregular Service of Summons.—Mere irregularity in the service ef a summons does not render a judgment void for want of jurisdiction.</p> <p>Return of Service of Summons.—When the return on a summons states that a copy of the summons was personally served on the defendant in the action, giving the time and place, this return, although informal, is yet sufficient to give the Court jurisdiction of the person. So that the judgment is not void for want of jurisdiction, when collaterally attacked.</p> <p>Idem.—Such return does not show that a copy of the summons was not delivered to the defendant personally, and it has at least some legal tendency to prove that it was so delivered.</p> <p>Idem.—If in such case there is more than one defendant, the fact that the return does not state that a copy of the complaint was served with the summons, does not render the judgment void in a collateral attack.</p> <p>Service of Summons on Attorney in Fact of Defendant.—A summons cannot be served by delivering a copy to the attorney .in fa