People v. De Bernal

[387] By the Court, Wallace, C. J.: The people on the 6th day of October, 1870, had judgment by default against the personal defendant and the real estate, also made a defendant in the action, and the defendants have appealed from the judgment. The question, as made hy the appellants, is as to whether or not it sufficiently appears in the record that the Court below obtained jurisdiction of the defendants by the service of process, so as to authorize the entry of judgment against them, the judgment reciting the fact of service. 1. As to the personal defendant: The return, made by the Sheriff upon the summons, is to the effect that after a diligent search the personal defendant could not be found, and that on the 5th day of August, 1870, he posted a copy of the summons on the door of the Court House in the City of Monterey. The Act (Hitt., Sec. 6190,) requires that the summons shall be served by delivering a copy thereof to each defendant named—“ provided, that if the personal defendant cannot be found in the county in which said action is brought, then service may be made upon such defendant by posting a copy of the summons for twenty days at the Court House door of said county.” The return of the Sheriff shows that the personal defendant could not he found, and that thereupon he posted the copy of the summons at the Court House door, and was so far forth a compliance with the requirements of the statute, for the personal defendant was thereby served, though not personally served, with the summons. But the same Act in an after section (Sec. 6193) also provides in terms “that no personal judgment shall be rendered unless the person against whom it is rendered shall have been personally served with the summons, or shall have appeared in said action.” The purpose usually had in view in effecting the service of a summons upon a defendant in a civil action, whether such service be personal or constructive [388] merely, is to acquire that jurisdiction of his person which is ordinarily indispensable to enable the Court to proceed to judgment, and if such service of the one character or the other be effected pursuant to the provisions of law in a case where the subject matter is itself one cognizable by the particular Court before which the defendant is cited to appear, it results upon general principles that the Court may rightfully proceed to determine the cause, and that its judgment concerning the subject matter of the suit cannot be questioned for mere lack of jurisdiction to render it. The statute having provided that though under certain circumstances a service not personal in its character might be properly effected upon a personal defendant, yet that in such case no personal judgment should be rendered against him, and the judgment here having been in fact rendered against him without such personal service and without appearance, it is not necessary (as it would have been in case the proceeding before us were a mere collateral attack upon the judgment) to determine if a judgment so rendered would be absolutely void—a mere nullity in the strict sense. Whether void or not, it is certainly erroneous, and upon direct appeal, as here, cannot be supported. 2. As to the real estate made a defendant in the action: The return of the Sheriff appearing upon the summons is to the effect that he served the summons upon the real estate “ by posting a true copy hereof on the same said premises, and by posting a copy on the door of the County Court House in Monterey City,” etc. The statute (Sec. 6190) provides that service of the summons shall be made “as to said real estate * * * by delivering a copy thereof to the person or persons in possession of the same, and further as to all real estate by posting a like copy in some public place thereon,” etc. The return does not show service upon the real estate made or attempted by delivering a copy of the summons to any person in possession of such real estate, nor does it show [389] that the officer was unable to find any person in possession thereof; nor does it show or set forth that a copy of the summons was posted in a public place on the premises—by which the statute means some place on the premises most likely to meet the eye of a person passing upon or near them. A copy of the summons merely posted on the premises is not all that the statute has provided for in that respect; but at some public place thereon is also required. In making service of the summons, and in the return of such service, the provisions of the statute must be and must appear to have been substantially observed and followed by the officer, otherwise the proceedings cannot be supported upon a direct appeal taken. Judgment reversed and cause remanded.