Kahn v. Matthai

Citations

• 115 Cal. 689
• 47 P. 698
• 1897 Cal. LEXIS 494

Syllabus

<p>Appeal from Judgment.—An appeal from a judgment is a direct attack thereon. But upon such appeal the judgment and its recitals will be presumed to be correct unless the contrary is made to appear.</p> <p>Id.—Summons — Publication—Judgment by Default—Jurisdiction.— Under section 670 of the Code of Civil Procedure, as amended in 1895, where service of summons is made by publication, the affidavit and the order directing its publication constitute part of the judgment-roll; and where such documents show, on an appeal from a judgment by default in an action to foreclose a mortgage, that a summons in fact issued, that it was sufficient in form, and that it was duly served by publication, and the judgment itself recites such service, a sufficient prima facie showing is made to give the court jurisdiction of the person of the defendant, although the original summons is absent from the judgment-roll.</p> <p>Id.—Affidavit fob. Publication—Showing an Attempt at Service.— An affidavit for publication of summons must show with accuracy-the efforts made to serve the defendant; and a mere statement therein, by the attorney for the plaintiff, that he had placed the summons and complaint in the hands of five different persons (naming them) for service, and that they returned them with the information that they could not find the defendant or see her, and that she could not be found in the county, is but hearsay and insufficient.</p>