Eichhoff v. Eichhoff

Citations

• 107 Cal. 42
• 40 P. 24
• 1895 Cal. LEXIS 709

Syllabus

<p>Action to Set Aside Decree Annulling Marriage—Service of Summons—Presumption—Burden of Proof.—In an action to set aside a decree annulling a marriage, upon the ground that the defendant in the action annulling the marriage was not served with summons, and had no notice of the suit, and never appeared therein, and that the judgment was procured by the fraudulent practice of the plaintiff in the action, the mere production of the judgment-roll, showing that a summons was issued, but containing no proof of service, and no memorandum of default, and no appearance for the defendant except by a guardian ad litem appointed by the court, and no recital in the record to the effect that summons had been served, does not raise a presumption that there was no jurisdiction of the court over the person of the defendant against whom the judgment was rendered; but the presumption is to the contrary, that the court did have jurisdiction of the person of the defendant, and this presumption must be overcome by proof, the burden of which is cast on the plaintiff in the action to annul the decree, that summons had not in fact been served in the former action.</p> <p>Id.—Direct Attack Upon Judgment—Indirect Attack—Equitable Suit. It is only upon a direct attack by appeal from a judgment by default that there is no presumption in favor of the existence of any fact essential to the jurisdiction of the court over the defendant; but, when an action is brought in a court of equity to set aside a judgment at law, the attack, although not collateral, is always indirect, and such an attack does not question or dispute the effect of the judgment as an adjudication, but seeks to be relieved from its operation upon equitable grounds.</p>