Lowe v. Alexander

Cope, J. delivered the opinion of the Court Field, C. J. concurring. This is an action to recover possession of an interest in certain mining claims in Sierra county. The interest belonged originally to one Schmidt, who, on the twenty-second of August, 1859, sold and conveyed the same to the plaintiff. On the trial of the case, the defendant offered in evidence a judgment and execution against Schmidt, for the sum of one hundred and eight dollars, together with interest and costs, and a Constable’s deed, dated the nineteenth of March, 1859, reciting a sale of the property under such judgment and execution, and conveying the same to one of the defendants, who was the purchaser at the' sale. The introduction of this evidence was objected to on several grounds, the principal one of which was, that the Justice before whom the judgment was obtained had no jurisdiction, and that consequently, the judgment was void. The Court sustained the objection, and excluded the evidence. The objections relied upon as fatal to the jurisdiction of the Justice are—1st, that it does not appear from the record that the defendant was sued in the the proper township; and, 2d, that the Constable who served the summons was not an officer of the township in which the service was effected. In respect to the service of the summons, it is contended that the docket of the Justice, in which it is recited that the summons was “ returned duly served,” is conclusive. We do not see upon what principle this recital is entitled to any weight whatever. The return of the officer is as much a part of the record as the docket itself, and if such return fail to show a sufficient service, the recital in the docket based upon the return alone, cannot be relied upon as giving validity and effect to the judgment. Such recital amounts to nothing more than the opinion of the Justice as to the legal sufficiency of the return. It neither embraces, nor professes to embrace, the determination of any question of fact. Whether the decision of an inferior court, establishing the existence of a fact essential to the exercise of its jurisdiction, can be attacked in a collateral proceeding, is a question which does not arise in the case, and in relation to which we [301] express no opinion. We have held, that such a decision is subject to review upon certiorari. (People ex rel. Whitney v. Board of Delegates San Francisco Fire Department, 14 Cal. 479.) In respect to the first objection, the record shows that the suit was for the recovery of money due upon a promissory note, that it was brought in township No. 4, Sierra county, and that the summons was served in township No. 3, of the same county. It nowhere appears either that the defendant was a resident of township No. 4, or that he was a non-resident of the county. The statute provides that “ no person shall be held to answer to any summons issued against him from a Justice’s Court, in a civil action, in any township or city other than the one in which he shall reside,” except in certain cases therein mentioned, one of which is, that “ when the defendant is a non-resident of the county, he may be sued in any township or city wherein he may be found.” (Wood’s Digest, 232, 233.) There is nothing to show that this suit was embraced by any of these exceptions. If the defendant was a non-resident, it still does not appear that he was sued in the proper township, nor was the summons returnable in the proper time. The reasonable conclusion is that he was a resident of the township in which he was served, but independent of this, we think it was incumbent upon the parties seeking to avail themselves of the judgment, to show affirmatively, from the record itself, that the Justice had jurisdiction. It is well settled that no intendments can be indulged in favor of the jurisdiction of inferior courts, but that their jurisdiction must affirmatively appear, or their judgments will be absolutely void. “ The general distinction seems to be fully agreed, that power and authority shall be intended as to courts of general jurisdiction, but as to inferior or limited courts, those who claim any right or exemption under their proceedings, are bound to show affirmatively that they had jurisdicdiction.” (1 Phil. Ev. Cow. & Hill’s notes, 206.) There is no doubt about the law upon this subject, and the authorities are so numerous, and so familiar to the profession, that a citation of them is entirely unnecessary. As the record in this case does not show that the suit was brought in the proper township, we are forced to hold that the proceedings were coram non judice and void. It was not necessary for the defendant to appear and object to the jurisdiction. He could have waived the objection by a voluntary appearance, but the jurisdiction is an affirmative matter, to be shown by the record, and the question is not whether the defendant appeared and objected, but [302] whether this affirmative matter sufficiently appears upon the face of the record. The objection to the authority of the Constable to serve the summons is also well taken. He was an officer of the township in which the suit was brought, and had no power to go elsewhere to make the service. Section 2 of the Act of 1850, prescribing the duties of Constables, provides as follows: “ The Constable shall attend the Courts of Justices of the Peace of his township, whenever required, and within his township shall execute all lawful orders made by them, and execute and return all writs and process directed to him by such Justice, or any lawful authority ; and shall serve within his township and return all notices placed in his hands for service, relating to any suit or proceeding in any Court of this State.” But one construction can be given to this section without doing violence to the language used. The authority of the Constable to execute and return writs and process is confined to his township, and any other construction would, we conceive, be in contravention of the express terms of the section. The question as to the partnership character of the property has nothing to do with the case. If the defendants have any rights in the premises growing out of the partnership relations of the parties, they must assert them in a different action. The property sued for is real estate, and admitting that it belonged to a partnership, it is only in equity that it can be treated as partnership stock. So far as this case is concerned, the parties stand exclusively upon their legal rights. Judgment affirmed.