Alderson v. Bell & Wife

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring. This was an action of ejectment, to recover certain premises situated in Placerville. The plaintiff asserts title to them by virtue of a sheriff’s deed, executed to him.as purchaser at a sale under a decree recovered against the defendants in a foreclosure case. On the trial, the plaintiff gave in evidence the record of the decree, and proceedings in the foreclosure case; to which objection was taken, on the ground that they did not disclose any service upon the defendants, as required by statute. The objection was overruled, and the plaintiff had judgment. The only evidence of service of process or papers in the foreclosure case, is contained in the following acknowledgment, endorsed upon the complaint: “We acknowledge service of the above complaint, and waive any other service and notice in the above entitled cause,” dated on the sixth day of ¡November, 1856, [321] and purporting to be signed by the defendants; and this acknowledgment, it is objected, was insufficient to confer jurisdiction upon the Court, as it is unaccompanied with proof of the signatures of the defendants, and a designation of the place where the service was made. It is well settled, that Courts will take judicial notice of the signatures of their officers, as such; but there is no rule which extends such notice to the signatures of parties to a cause. When, therefore, the proof of service of process consists of the written admissions of defendants, such admissions, to be available in the action, should be accompanied with some evidence of the genuineness of the signatures of the parties. In the absence of such evidence, the Court can not notice them. (Litchfield v. Burwell, 5 Howard Pr. Rep., 346.) In the foreclosure case, it is to be presumed that such evidence was furnished to the Court before the judgment was rendered. The decree recites that the defendants had been regularly served with process, or had waived service by their acknowledgment. This is sufficient evidence that the requisite proof was produced to establish the genuineness of the signatures of the defendants to their admission. Even if there were no such recitals in the decree, and there was an entire absence of evidence in the record on the point, still the presumption would be in favor of the jurisdiction of the Court, and of the regularity of its jtroceedings; and, for the want of such evidence, 'the decree cannot be impeached in this collateral action. (Cook v. Darling, 18 Pick., 393; Crane v. Brannan, 3 Cal., 192.) The statute does not require an admission of service to designate the place where the service was made. The object of such designation, when required, is to determine the period within which the answer must be filed, or when default may be taken. If the judgment in the foreclosure case was entered prematurely, the remedy of the defendants must be sought by direct proceedings in that action. The decree can not be impeached collaterally on that ground. (Whitwell v. Barbier, 7 Cal., 54.) In this State, the wife can appear in, and defend an action, separately from her husband. To enable her to do so, she must po^-, ses, as defendant, all the rights of a feme sole, and be able to m¡ake' as binding admissions in writing, in the action, as other parties. Judgment affirmed.