Harpold v. Doyle

Citation16 Idaho 671,102 P. 158
PartiesMARY HARPOLD, Respondent, v. WILLIAM DOYLE, Appellant
Decision Date16 December 1908
CourtUnited States State Supreme Court of Idaho

BREACH OF PROMISE-DAMAGES-EVIDENCE-SUMMONS-SERVICE OF BY PUBLICATION-NONRESIDENT DEFENDANT-PUBLICATION FOR TWO MONTHS-AFFIDAVIT OF PUBLISHER-PROOF OF SERVICE-HOW CONSTRUED-MAILING COPY OF SUMMONS-ALIAS SUMMONS-NOTICE IN SUMMONS-SUFFICIENCY OF JUDGMENT ROLL-WHAT CONSTITUTES-COURT SEAL ON SUMMONS-PUBLICATION OF SUMMONS-LENGTH OF TIME-PERSONAL SERVICE-CONSTRUCTIVE SERVICE BY PUBLICATION-PRESUMPTION-DEFAULT INDORSED ON COMPLAINT-STATUS OF PARTIES.

1. Under an order for service by publication of summons for two months, where the first publication is made on March 29 1899, and the last on May 28, 1899, held, that the publication was made for two months.

2. Where, in the affidavit of the manager or publisher of the newspaper in which publication of summons was made, it is stated that the summons was published for sixty days "commencing on the 29th day of March, A. D. 1899, and ending on the 27th day of May, 1899, both days inclusive, and in every issue of said paper during said time, to wit" then following with an enumeration of all of the days beginning with the 29th day of March and ending with the 28th day of May, enumerating each and every day on which said publication was made, said paper having been published daily except Mondays, that is sufficient to warrant the conclusion that the publication was made for sixty-one days.

3. The affidavit of publication should be construed to support the validity of the judgment if it can be reasonably so construed.

4. Where it is recited in the judgment that the summons has been published for sixty days and the proof of publication clearly shows that it was published for two months, such recitation of the judgment does not negative the fact that it was published for two months, as the actual time of publication of the summons will control.

5. In service of summons by publication, where the judgment roll shows that the period of publication expired on May 28th, and that the judgment was entered on June 29th following, held, that the period of thirty days after the expiration of the period of publication had expired before the entry of the judgment.

6. Where the order for publication directs that a copy of the summons shall be mailed to the last known address of the defendant, and it appears that the order for publication was made on the 7th of a certain month and that the mailing of the copy of summons and complaint occurred on the 9th of the same month and after the original summons had been returned not served, and the alias summons was issued on the 10th of said month, which was a copy of the original, held, that the mailing of such copy was a sufficient compliance with the provisions of sec. 4146, Rev. Stat.

7. Under the provisions of sec. 4231, Rev. Stat., this court is directed in every stage of an action to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties.

8. Under the provisions of subd. 5 of sec. 4140, Rev. Stat., it is provided that the summons must be directed to the defendant and must contain a notice that unless the defendant appears and answers, plaintiff will apply to the court for the relief demanded in the complaint.

9. Held, that where a copy of the complaint was served with the summons and notice reciting as follows, to wit: "And you are notified that unless you appear and answer.... plaintiff will take judgment against you for the dissolution of the bonds of matrimony between you and the plaintiff herein, and this plaintiff will resume the name of Mary Harpold, and for equitable relief," is sufficient, though it does not state that the "plaintiff will apply to the court for the relief demanded."

10. Under the provisions of subd. 1, sec. 4456, Rev. Stat., the judgment roll consists of summons with the affidavit or proof of service, and the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. The affidavit and order for publication of summons are not required to be inserted in the judgment roll or made a part thereof.

11. The act of February 27, 1903 (Sess. Laws 1903, p. 333), entitled: "An act providing that the state and county printing and binding and stationery work of the several counties throughout the state shall be executed within the state," provides, among other things, that such printing, when done by a weekly newspaper, shall only be done by newspapers that have been published fifty-two consecutive weeks prior to the time of publishing such county or state printing, and is not applicable in cases where the publication of summons is made under an order of the court.

12. The omission of the seal of the court on an alias summons is not fatal, but is a mere irregularity and does not render the process void.

13. Where the order for publication of summons directed that publication be made "at least once a week for one full month," and the summons is published in a weekly newspaper for five consecutive weeks, the first publication being made on September 16th and the last publication on October 14th following, held, a compliance with the statute, sec. 4146, which requires that if such publication is made in a weekly newspaper, it must not be less than a month.

14. The proceedings of courts of general jurisdiction, where the summons is served by publication, are supported by the same presumptions as where the service is personally made, and can no more be avoided for mere errors and irregularities than can their other orders and judgments.

15. Under the provisions of sec. 4456, Rev. Stat., the default of the defendant in not answering should be indorsed upon the complaint; but if the clerk neglects to make such indorsement, it is a mere irregularity that cannot be taken advantage of in a collateral attack on the judgment; and especially is that true where the judgment recites the fact that the default of the defendant was duly entered.

16. A stranger to a judgment in a court of record is not prohibited from impeaching the judgment in a collateral proceeding, but in order to do so, he must show that he has rights and claims and interests which would be prejudiced or injuriously affected by the enforcement of the judgment that accrued prior to its rendition.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for Bonner County. Hon William W. Woods, Judge.

Action to recover damages for a breach of promise to marry. Judgment for the plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

J. L. McClear, and Herman H. Taylor, for Appellant.

When Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, was decided, the supreme court of California was then holding practically the same as O'Neill v. Potvin, 13 Idaho 727, 93 P. 20, 257, that the affidavit and order of publication were not a part of the judgment roll. Since 1895, however, and prior to the Harpold decree, which was in 1899, California courts have held, since an amendment, that those papers are a part of the judgment roll. (Kahn v. Matthai, 115 Cal. 689, 47 P. 698; Savings Bank v. Goodsell, 137 Cal. 420, 70 P. 299; Parson v. Weis, 144 Cal. 410, 77 P. 1007.)

If from the record it appears that the court had not jurisdiction, its action is void. If the record on the whole shows that something was done to acquire jurisdiction, which was insufficient, it will not be presumed that some other thing, not shown by the record, was done which would confer jurisdiction, the whole record being taken together for this purpose. (12 Ency. Pl. & Pr. 175; Galpin v. Page, 18 Wall. (U. S.) 350, 21 L.Ed. 959; Fowler v. Simpson, 79 Tex. 611, 23 Am. St. 370, 15 S.W. 682.)

Hahn v. Kelly, above cited, has been overruled, at least in so far as it was inconsistent with Galpin v. Page, 18 Wall. (U. S.) 350, 21 L.Ed. 959, and Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, upon the question of the effect of the judgment against nonresidents without personal service of process. (Belcher v. Chambers, 53 Cal. 635.)

The record of a foreign judgment may be collaterally attacked for want of jurisdiction which may be shown even in contradiction of recitals in the record itself. (Thompson v. Whitman, 18 Wall. (U.S.) 457, 21 L.Ed. 897; Knowles v. Logansport Gas Light Co., 19 Wall. (U.S.) 59, 22 L.Ed. 70; Greenzweig v. Strelinger, 103 Cal. 278, 37 P. 398; 13 Am. & Eng. Enc. of Law, 2d ed., 988, 991, 992; Com. v. Blood, 97 Mass. 538; Cunningham v. Spokane Hydraulic Co., 18 Wash. 524, 52 P. 235; 2 Black on Judgments, secs. 895, 896, 910.)

Where the record shows affirmatively that no sufficient service by publication was had, the judgment may be attacked collaterally, notwithstanding a recital therein of due service. (17 Ency. Pl. & Pr. 50; Hyde v. Redding, 74 Cal. 493, 16 P. 380; McMinn v. Whelan, 27 Cal. 300; Northcut v. Lemery, 8 Ore. 316; O'Dell v. Campbell, 9 Ore. 298; Manning v. Heady, 64 Wis. 630, 25 N.W. 1.)

The code authorizing constructive notice by publication in divorce cases should be strictly construed. (Rodgers v. Nichols, 15 Okl. 579, 83 P. 923.)

Statutory provisions for acquiring jurisdiction of person of defendant by publication of summons instead of personal service must be strictly pursued. (People v. Huber, 20 Cal. 81; Curran v. Shattuck, 24 Cal. 427; McMinn v. Whelan, 27 Cal. 300; Forbes v. Hyde, 31 Cal. 342; Ricketson v. Richardson, 26 Cal. 149; Steinbach v. Luse, 27 Cal. 295.)

"Under Code Civ. Proc., sec. 408, providing for the issuance of alias summons where original has been lost or returned without being served, the court has no power to issue an alias summons where...

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