No. 2,626.

#### JOHN HANCOCK et *al.,*Respondents, *v.*E. A. PREUSS *et*al., Appellants.

Service op Summons. — Re-Delivery and Service apteb Return. — After a summons has been served on some of tbe defendants, and returned, it is competent to tbe Court to order it delivered to tbe plaintiff for further service on other defendants in tbe same or another county.

Idem. — Presumption.—When tbe summons is served after having been once returned, and tbe Court thereupon assumes jurisdiction of the defendants, and renders judgment against them, it will be presumed in a collateral attack on tbe judgment, that the Court made the requisite order, permitting tbe summons to be withdrawn for future service.

Idem. — A re-delivery of tbe summons without an order of the Court, is an irregularity, of which the opposite party may avail himself by direct attack; but such irregularity will not render the service of the summons void.

Appeal from tbe Seventeenth District Court, County of Los Angeles.

This is an action of ejectment. On tbe trial tbe defendant offered in evidence, tbe judgment roll of an action to *573foreclose a mortgage of tbe premises in question, in wbicb action tlae plaintiff grantor was a defendant and a party foreclosed. The defendants claimed title, under the Sheriff sale and deed, pursuant to said judgment.

The Court below, ruled that the judgment was void as to plaintiff grantor — one Benjamin J. Yirgin — on the ground that it appeared by the said roll, that he had not been served with summons in the action.

The defendants also offered in the evidence the proceedings under the judgment of foreclosure after the exclusion of the judgment roll.

The other facts are stated in the opinion.

*Olassell, Ohapman*and *Smith,*for Appellants,

*lirst*— The Sheriff’s return attached to the summons recites a formal service on Yirgin.

But we can see no reason for an *alias summons,*nor understand on what, principle the Sheriff’s act of filing the summons with the Clerk before it was served, should destroy the further vitality of the summons. And this appears to be the view taken by this Court in the case of *JDupuy*v. *Shear,*(29 Cal. 239.)

Possibly it might be maintained, that by filing the summons it thereby became one of the files of the Court, not subject to be taken out for further service, without an order of Court. But, if so, in order to maintain the jurisdiction of the Court in rendering the judgment, it would be presumed that the required order was obtained. *(Hahn*v. *Kelley,*23 Cal. 391; *Sharp*v. *Humley,*34 Cal. *615¡Smith*v. *McDonald,*July Term, 1870.)

*Second*— The judgment expressly >and conclusively finds that the said Yirgin was duly served with summons. *(Van-geazel*v. *Hilliard,*1 Houston, Del. 515.)

*Third*— The recital of the service of summons on said Yir-gin, contained in the findings of the Court attached to the judgment roll, is positive evidence of such service.

A3 a record in the case, it is evidence of the fact of ser*574vice of summons, as therein expressly declared. *(Lick*v. *Stoclcdale,*18 Oal. *223-4.)*

Those cases, which restrict *the attack*upon the validity of a judgment to the evidences contained in the technical judgment roll, do not make the same restriction when other portions of the record are relied on *in support*of the judgment. *(Hahnv. Kelley, sicpra et ubique; Quivey*v. *Porter,*37 Cal. 458J

The judgment roll *per se*does not show want of jurisdiction of the person of Yirgin, and such jurisdiction is therefore conclusively presumed. (Authorities *supra.)*

The Court would even presume, if necessary, that another summons was afterwards issued and served. *{Sharp*v. *Lum-ley,*34 Cal. 615; *Garpentier*v. *Oakland,*30 Cal. 447-8; *Hahn*v. *Kelley,*34 Cal. 391;Smithv. *McDonald,*JulyTerm, 1870.)

*Larrábee, Gandid,*and *McDaniel,*for Respondents.

The legal principles established by this Court are these:

*First*— A judgment is absolutely void, if it appear that there was want of jurisdiction in the Court rendering it, either of the subject matter, or the person of the defendant.

*Second*— The jurisdiction of a superior Court need not affirmatively appear in the judgment roll; if it does not, and the contrary does not therein affirmatively appear, jurisdiction will be presumed.

This judgment, we say, is absolutely void as to Yirgin, and those who claim under him, because it affirmatively appears upon the face of the record, that the Court never had jurisdiction of his person.

It cannot be presumed in favor of this judgment, that the vital thing was done which the law requires in order to give jurisdiction, for it affirmatively appears that the thing which was done, was not *so*done as to give it. It appears that the single thing done was the service of a dead writ. It affirmatively appears that there was no voluntary appearance of Yirgin; for in that event either an issue would have been formed, or there would have been default for want of answer.

*575Id. the judgment there is neither recitation of appearance, nor of service of process. It is a naked judgment, with no pretense of jurisdiction. Nor can it bepresumedthat another and different summons was issued and served, for the single summons shows, by the endorsement on its bach and by the returns attached, that it was the only summons in the case, and that it was the identical paper served upon Yirgin.

Much less can it be presumed that there was an order of Court permitting the taking out the defunct writ, and ordering its service upon other defendants, for no Court can give vitality to a dead writ by any known form of adjudication. The summons is the writ of the Constitution and the law, and not the prescript of the judge.

This writ then when once issued, placed in the hands of the executive officer, and by him returned and filed in Court, became functus, for all purposes save as a record of its previous vitality. It ceased to be a living writ, became part of the files of the Court, and a necessary part of the judgment roll to be subsequently made. It was henceforth to be a record. It had fulfilled its living function. The return day had passed, and the return was complete.

It may as well be argued that a Court has power to order a returned execution to be re-issued and served, or any other writ known to the law, as that a dead summons can be given vitality by the mere breath of the Court

There is nothing in the Practice Act prohibiting any number of writs of summons in a single suit, taken out either simultaneously, or consecutively. This has been so decided by this Court in *Sharp*v. *Lumley,*(34 Cal. 611), where there were two writs issued. The Court says: “The fact that a summons also issued on the first of August is not inconsistent with the fact that one issued in May. (Also see *Dejmy*y. *Shear,*29 Cal. 239.)

We now proceed to notice such points of appellant’s brief as are not already anticipated:

*First*— “The Sheriff’s return, attached to the summons, recites a formal service on Virgin.”

*576So it does, but at tbe same time it shows the service to have been a writ that bad once been returned and filed in Court. f Hence there was both an absence of *notice*by the Sheriff to Yirgin, as well as a want of power in the Sheriff to give any notice

The moment the summons was returned and filed by the Clerk, it became a part of the judgment roll. *(Sharp*v. *Lumley,*34 Cal. 611.)

*Second*— “The judgment expressly and conclusively finds that the said Yirgin was duly served with summons.”

We reply that the judgment does *not “*find ” that Yirgin or any other defendant was served with summons, nor does it recite any appearance upon which to “find.” - The law specifies exactly what shall constitute the judgment roll. (Practice Act, Sec. 203.)

In the case of *Workman*v. *Hancock*there was no answer of any one of the defendants; it was a palpable case of default for not answering. Again it is said that ‘ ‘ the so-called ‘ findings ’ constitute a judgment, and contain all the essentials thereof.” In the case of *Workman*v. *Hancock,*there being no issue joined, the so-called findings are wholly nugatory, and if so, no reference to them in the judgment could give them vitality. *(Swift*v. *Muygridge,*8 Cal. 445 ; *Fox*v. *Fox,*25 Cal. 587; *Tayler*v. *Palmer,*31 Cal. 242 ; *Burnett*v. *Stearns,*33 Cal. 468; *Halm*v. *Kelly,*84 Cal. 391; *Sharp*v. *JDampney,*33 Cal. *505.)*

Rhodes, C. J.,

delivered the opinion of the Court, Temple, J., CROCKETT, J., and Wallaoe, J., concurring:

The record in the action of *Workman*v. *Hancock*was excluded, when offered in evidence by the defendants, on the ground that it appeared therefrom that Benjamin J. Yirgin, who held the legal title to the premises in suit, had not been served with process. It appears from the record, that a summons was issued and placed in the hands of the Sheriff of Los Angeles County, who served the same upon certain of the defendants, and returned it to the Clerk’s office; and that subsequently, and after it had been served *577upon certain of tbe defendants in Sacramento and Los Angeles counties, it was received by tbe Sheriff of tbe city and county of San Francisco, wbo served it upon tbe defendant Virgin. Tbe official certificate of service was, in eacb case, indorsed on tbe summons.

It is not denied that tbe summons was in fact served upon Virgin; but it is contended by tbe plaintiffs, that as tbe summons bad been returned to, and filed in, tbe Clerk’s office before it came to tbe bands of tbe Sheriff of San Francisco, it did not confer any authority on him to make tbe service — that when tbe summons was returned and filed it became *functus officio*for all purposes whatsoever, except to constitute a part of tbe record in tbe cause. A summons is not directed to tbe officer or person by whom it is to be served, nor is it required to be returned at or before any specified time; but it is directed to tbe defendants, and is required to be returned with tbe proof of service. There can be no question that, after the service of tbe summons upon tbe defendants wbo were found in Los Angeles County, tbe plaintiff might have delivered it to tbe Sheriff of tbe city and county of San Francisco, and that bis service of tbe process would have been valid. Tbe statute does not require that a separate summons shall issue to eacb county in which any of tbe defendants may reside; and after a summons has been served on some of tbe defendants and returned, it may become necessary or proper that it should be served on other defendants, either in tbe sainé or another county; and in that case it would be competent to tbe Court to order it to be delivered to tbe plaintiff for further service. When tbe summons was served, after having been once returned, and tbe Court thereupon assumed jurisdiction of tbe defendants, and rendered judgment against them, it will be presumed, in a collateral attack on tbe judgment, that tbe Court made tbe requisite order, permitting tbe summons to be withdrawn for further service. A re-delivery of tbe summons, without such an order, would be an irregularity of which tbe opposite party might avail himself, *578by a direct attack in some proper mode; but suck irregularity would not render tbe service of tbe summons void. We are of tbe opinion tbat tbe Court erred in excluding tbe judgment of foreclosure.

It was altogether useless for tbe defendants to offer in evidence tbe proceedings under tbe judgment of foreclosure, after tbe exclusion of tbe judgment. When an essential link in tbeir chain of title was excluded, it needed only tbe statement tbat they claimed through tbat chain of title, in order to present for review tbe questions arising upon tbe ruling of tbe Court in tbat respect.

Judgment and order reversed, and cause remanded for a new trial.