Blasdel v. Kean

[308] By the Court, Belknap, J.: From the sheriff’s return it appears that service of summons was made upon the defendant Kean on the seventh day of July, 1871, and upon the defendants Williams and Bourne respectively on the nineteenth and twentieth days of the same month. The summons bears the following indorsement by the clerk of the court: “Filed July 11, 1871.” It is contended in behalf of the appellant Williams, against whom a judgment by default was taken, that the file mark of the clerk shows the summons to have been returned before service upon him, and that by returning it the sheriff parted with his control of the writ and it became functus officio. Were the rest of the record silent upon the question of service we should proceed to determine whether the court acquired jurisdiction of the person of the appellant by a summons which after having been served upon a co-defendant was returned to the clerk and thereafter withdrawn and served by the sheriff. This question, however, is not presented by this record; for the decree recites that the defendant’s default was entered “ upon due proof of the service of summons and copy of the complaint as required by law.” The finding of a legal service of summons in the judgment is as much a part of the record and entitled to the same credence as the file mark of the clerk anterior to the service of summons. If the writ became functus officio on the 11th day of July and no jurisdiction was obtained by the act of the sheriff of the 19th of July, there is an apparent contradiction in the record. But every legal intendment is in favor of the validity of the judgment, and the presumption arises that other evidence was introduced which established the sufficiency of service of summons to the satisfaction of the district judge. Hahn v. Kelley, 34 Cal. 391; Alderson v. Bell, 9 Cal. 315. Judgment affirmed.