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Weil v. Bent

60 Cal. 603 Court Department One.] Decision date 1882-06-28 Docket No. 8,294 English

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p. 603
[No. 8,294.
Department One.]
June 28, 1882.
ALEXANDER WEIL v. H. K. W. BENT et al.

Headnote

Affidavit of Service of Summons—Judgment by Default.—An affidavit of service of summons which fails to state that the affiant was over the age of eighteen years at the time of the service, is insufficient to support a judgment by default.
Appeal by defendant F. Palomares from a judgment for the plaintiff in the Superior Court of Los Angeles County. Howard, J.
The affidavit of service of summons is in the following form:
M. J. Wicks, being duly sworn, deposes and says: I am over the age of eighteen years and not a party .to nor interested in this action, etc., etc.
There was an amended complaint in the case with an affidavit of service on defendant Palomares.
F. A. Howard, for Appellant.
Cited Howard v. Galloway, supra, p. 10.
Glassell & Smith, and M. L. Wicks, for Respondent.
The judgment in this case, (which is signed by the judge of the Court), recites that the amended complaint was duly personally served on the defendants. The original complaint and summons was served by M. J. Wicks, whose affidavit is similar to that in Howard v. Galloway, 8 P. C. L. J. 1060 , and Maynard v. McCrellish, 57 Cal. 353 , both of which cases were decided by Department Two.
As the point of practice is an important one, we beg leave to submit (with the view of leaving the decision of this department unquestioned), that Section 410 C. C. P. does not prescribe the form of the affidavit, but simply provides that the summons may be served by any person over the age of eighteen, not a party to the suit, and that the summons shall be returned with an affidavit of such person of its service.
We submit that the fact of the age of the party serving the process may be made to appear by other evidence than
p. 604
that of the return, and in this case the judgment being signed and given by the Court, it must be presumed that the Court was satisfied by ocular demonstration or other satisfactory evidence that the party serving the summons was of competent age.

This is an appeal by defendant Palomares from a default judgment. The affidavit of service of summons does not show that affiant was over the age of eighteen years at the time of the service. On authority of Maynard v. McCrellish, 57 Cal. 855 , and Howard v Galloway, supra, p. 10 .

Judgment is reversed and cause remanded.

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