City of Salinas v. Kow Lee

This action was brought to foreclose a street assessment lien. The service of summons was by publication, and judgment against the defendant was entered by default January 24, 1927. Motion to set aside the judgment was made September 28, 1931, more than four years after its entry. Stated generally, the motion was grounded on an asserted want of jurisdiction in the trial court over the person of the defendant. The motion to vacate was denied and from the order denying the same the defendant prosecutes this appeal.

It is, of course, settled that a judgment void on its face may be set aside at any time by the court entering the same, either upon its own motion or at the request of the parties thereto. (Baird v. Smith, 216 Cal. 408 [ 14 Pac. (2d) 749 ]; Lake v. Bonynge, 161 Cal. 120 , 126 [ 118 Pac. 535 ].) At the time of the entry of appellant’s default and up to and including the time of the making of the motion to vacate, the affidavit of publication, which, of course, constitutes a part of the judgment-roll, indicated that the summons had been published for “one month”. Under section 413 of the Code of Civil Procedure and under the order of the court below directing publication of summons, which order also forms a part of the judgment-roll (sec. 670, Code Civ. Proc.), it was essential in order to acquire jurisdiction of the person of the appellant, he being then out of the state, that summons be published for “two months”. Upon the making of the motion to vacate it thus appeared on the face of the judgment-roll that publication of summons had been for an insufficient period. To overcome this apparent deficiency and to cause the record to speak the truth the court below, in response to a cross-motion of the respondent, permitted the filing of an amended affidavit of publication wherein it was made to appear that summons had, in fact, been published for a period of two months as required by law and the order directing such publication. It was well within the province of the court below to permit the filing of such amended affidavit of publication, even though several years had then elapsed since the entry of the judgment, for it is now well settled that it is the fact of service and not the proof of service which determines the validity or invalidity

The rule is well stated in Freeman on Judgments, fifth edition, page 370, section 193, wherein the following appears: “As a general rule, an officer who has made a return of process will be permitted to amend such return at any time. If the return upon the summons or other writ designed to give the court jurisdiction over the person of the defendant is omitted or incorrectly made, but the facts really existed which were required to give the court jurisdiction, the weight of authority at the present time permits the officer to correct or supply his return until it states the truth, though by such correction a judgment apparently void is made valid. Though the proof of the service of process does not consist of the return of an officer, the like rule prevails. Thus if a summons has been published in the manner required by law, but the proof of publication found in the files of the court is defective, the court may, on the fact of due publication being shown, permit an affidavit to be filed showing the facts, and when so filed it will support the judgment as if filed before its entry.”

In the case of Herman v. Santee, supra, the filing of the amended affidavit of service of summons was permitted approximately one year after the entry of judgment. Such proof is permitted not for the purpose of authorizing the court to enter a new judgment, but to show that the judgment previously entered was not without jurisdiction, and never was void.

However, even in the absence of the amended affidavit showing proper service, we would be disinclined to agree with appellant’s contention that the judgment is void on its face and therefore amenable to a motion to vacate made more than four years after its entry. Having been made long after the expiration of the period prescribed in section 473 of the Code of Civil Procedure, such motion is governed by the rules applicable to collateral attack and must therefore be presented and determined upon the judgment-roll alone. (In re Morehouse, 176 Cal. 634 , 636 [ 169 Pac.

Appellant next contends that the judgment is invalid because of the asserted insufficiency of the affidavit for publication of summons. Citing section 412 of the Code of Civil Procedure, appellant urges that the affidavit fails to state “either that no certificate designating the place where summons might be served on the defendant had been filed or that if filed the defendant could not be found

Appellant next urges that the verified complaint fails to state a cause of action and will not, therefore, support an order for publication of summons. Respondent replies, and inspection of the record satisfies us as to the correctness of its position, that this point was not urged in the court below in support of the motion to vacate, but is advanced for the first time on appeal, and under well-settled principles is not entitled to consideration. With this conclusion we are in accord. However, a considera^ tion of the point on its merits would not require a reversal of the order refusing to vacate. We are satisfied that the complaint states a cause of action under the Improvement Bond Act of 1915, as amended in 1923. (Stats. 1923, pp. 415, 416.) Appellant’s contention is based on the misapprehension that the complaint herein was drawn under

The order is affirmed.

Langdon, J., Curtis, J., Preston, J., Seawell, J., and Shenk, J., concurred.