Whitwell v. Barbier

Citations

• 7 Cal. 54

Syllabus

<p>A personal judgment of a Court of general jurisdiction is invalid for the purpose of acquiring any rights under it, when it appears affirmatively upon the face of the record that the Court had acquired no jurisdiction over the person of the defendant.</p> <p>There is, however, a very decided distinction between want of jurisdiction and irregularity in procuring jurisdiction.</p> <p>In the one case, the judgment can be attacked in any form, directly or collaterally; in the other, only by a direct proceeding against the judgment in the Court which rendered it, or in an appellate Court upon appeal from the judgment.</p> <p>The true test is, whether the omission be of the form or of the substance of the act required to be performed.</p> <p>Where a defendant was served with process, but was not given the time allowed by statute to appear and answer, it would be a sufficient reason for the Court to quash the writ on motion by an amicus curies, or for extension of the time on defendant's motion, or a good objection on writ of error, arrest of judgment, or motion for a new trial; but it cannot be said that the Court had no jurisdiction of the person so as to make its judgment a nullity.</p>