Howard v. McChesney

Citations

• 103 Cal. 536
• 37 P. 523
• 1894 Cal. LEXIS 819

Syllabus

<p>Vacation of Judgment—Service by Publication—Recital.—A judgment by default, in an action where the service of the summons was by publication, is not void on its face, where it contains a recital of due service, if there is nothing in the record inconsistent with, such recital; and a motion to vacate the judgment cannot be made after the time limited by section 473 of the Code of Civil Procedure.</p> <p>Id.—Affidavit of Publication—Videlicit—Omission of Date.—A direct statement in the affidavit of publication that summons was published each week for two months between two named dates is not overcome and rendered valueless by a subsequent statement under a videlicit in which one regular day for the issuance of the paper i¡} omitted from the enumeration.</p> <p>Id.—Construction of Videlicit.—That which follows a videlicit does not destroy that which precedes it; and, as a general rule, if it is repugnant to the preceding matter, it will be rejected.</p> <p>Id.—Amendment of Affidavit of Publication.—Upon a motion to set aside a judgment by default for a defect in the affidavit of service by publication the court has the right to allow in evidence a second affidavit to clear away any possible doubt which there might be about the meaning of the first, and to show that the service by publication was sufficient in fact.</p>