Hibernia Savings & Loan Society v. Matthai

Harrison, J. The appeal herein is from a judgment of foreclosure entered upon the default of the appellant. It is recited in the judgment that the defendants in the action were severally, personally, and duly served with the summons, together with a copy of the complaint, that the default of the appellant for not answering was duly entered, and that the cause came on regularly for trial by the court upon the complaint taken as confessed by her. The judgment-roll which is set out in the transcript as originally filed herein, did not contain a copy of the summons -with proof of service upon the appellant, and it was contended by her in the briefs filed on her behalf that by reason of the failure of the record to show that the court had acquired jurisdiction over her the judgment must be reversed. At the time the appeal herein was taken the original summons with the proof of service thereof upon the appellant had been lost from the files of the superior courtj hut afterward that court, upon proof of the loss, authorized copies to be filed and used in place of the originals. Since the briefs herein were filed the respondent, upon [426] a suggestion of the diminution of the record, has filed herein a properly certified copy of the summons, with proof of service indorsed thereon, substituted as aforesaid, from which it appears that the appellant was personally served with the original summons issued herein and a copy of the complaint, in the city and county of San Francisco, by the sheriff thereof, on the 28th of December, 1894. The points urged in support of the appeal have therefore been obviated, and it sufficiently appears from the record, as thus corrected, that the judgment against the appellant was properly entered. The order of the superior court authorizing the copies to be filed was a determination by that tribunal that they were correct copies of the originals, and the papers thus substituted are entitled to the same weight as would be the originals. (Knowlton v. Mackenzie, 110 Cal. 183.) Upon the service of the summons, and the failure of the defendant to appear in the action within the time allowed therefor, the court acquired jurisdiction by reason of her default to enter a judgment against her, and it was not necessary that a formal default should have been previously entered by the clerk. (Drake v. Duvenick, 45 Cal. 455.) The court had jurisdiction to enter the judgment even though at the time the summons with proof of service had not been filed with the clerk. (Herman v. Santee, 103 Cal. 519; 42 Am. St. Rep. 145.) (The ruling to the contrary in Reinhart v. Lugo, 86 Cal. 395, was overruled in this case.) The court acquired jurisdiction of the appellant by the service of its process, and did not lose it by neglecting to make the proof of such service a matter of record (Sichler v. Look, 93 Cal. 600); and a subsequent amendment of the record by supplying this proof of service is as effective to support the judgment as if it had been filed before its entry. (Freeman on Judgments, sec. 89 b; Allison v. Thomas, 72 Cal. 562; Perri v. Beaumont, 88 Cal. 108; Herman v. Santee, supra.) The judgment is affirmed. Van Fleet, J., and Beatty, C. J., concurred.