Lowe v. Alexander

Citations

• 15 Cal. 296

Syllabus

<p>The recital in the docket of a Justice, who had rendered judgment, that the summons was “returned duly served,” is of no weight to prove proper service of the summons. The return of the officer is as much a part of the record as the docket itself, and if the return fail to show sufficient service, the recital, being based on the return alone, amounts to nothing more than the opinion of the Justice, and cannot be relied on to give validity to the judgment.</p> <p>Such a recital embraces no question of fact, and does not, therefore raise the question whether the decision of an inferior Court, establishing the existence of a fact essential to its jurisdiction, can be attacked in a collateral proceeding, upon which point this Court expresses no opinion.</p> <p>The record of the proceedings in a Justice’s Court, in which judgment was rendered, must affirmatively show that the suit was brought in the proper township, or the proceedings are coram non judice and void; and the failure of defendant, after summons served, to appear and object that suit was brought in the wrong township, is no waiver of the objection.</p> <p>Where the record shows that suit was brought in township No. 4, Sierra county, that the summons was served, by the Constable of that township, in township No. 3, and it nowhere appears either that the defendant was a resident of township No. 4, or a non-resident of the county, or that the suit was within any of the other exceptions of the statute, (Wood's Dig. 232, 233) the judgment rendered is void, and not admissible as evidence of title upon a sale made thereunder.</p> <p>A Constable has no power to execute process out of his township.</p> <p>In ejectment for an interest in a mining claim, the answer being a general denial, defendant cannot defeat the action by showing the claim to be partnership property. Any rights defendant may have in the premises, growing out of the partnership, must be asserted in equity, particularly as the legal title in this