Laughlin v. Hughes et al.

• Decision Date: 18 April 1939
• Citation: 89 P.2d 568,161 Or. 295
• Parties: LAUGHLIN <I>v.</I> HUGHES ET AL.
• Court: Oregon Supreme Court

161 Or. 295

89 P.2d 568

LAUGHLIN

v. HUGHES ET AL.

Supreme Court of Oregon.

Argued March 21, 1939.

Reversed April 18, 1939.

Process — Summons — Publication — Affidavit

1. Under California law, affidavit for service of summons by publication stating on information and belief that defendant had departed from California, that effort had been made to serve summons on defendant but that defendant could not after due diligence be found within California did not show that due diligence had been exercised in attempting to make personal service.

Judgment — Summons — Affidavit for publication

2. A judgment based on service by publication of summons is invalid if the affidavit for the order directing such service is insufficient.

Judgment — Courts — Jurisdiction

3. Where defendant was resident of California at time of institution of action against him in California but when affidavit for order directing service by publication of summons was filed defendant had departed from California, and had left no property there and no place of abode there, the California court could not obtain such jurisdiction of defendant's person by publication of summons as to render a valid judgment in personam.

Process — Courts — Jurisdiction

4. Under California law, in cases where the summons is published, the publication must be completed before the court acquires jurisdiction of parties.

Judgment — Service by publication

5. Under California law, the domicile of defendant within California does not justify the rendition of a judgment in personam against him where the only service of summons is by publication, defendant being outside of territorial limits of California and not appearing in the cause wherein such judgment is sought.

Judgment — Jurisdiction

6. Where record of foreign judgment itself disproves presumption of jurisdiction over defendant, such foreign judgment is invalid.

Judgment — Jurisdiction

7. The presumptions of regularity applicable to judgment in courts of general jurisdiction are applicable only where the court is proceeding according to the course of the common law and not where the jurisdiction has been acquired in some special manner prescribed by statute.

Judgment — Adjudication — Evidence

8. Where a judgment is relied on as an adjudication of the subject matter or as establishing any particular state of facts of which it is the judicial result, it can be proved only by offering in evidence a complete record or a duly authenticated copy of the entire proceeding in which the judgment was rendered.

Judgment — Jurisdiction

9. The entire record must be considered in determining whether the court entering judgment had jurisdiction to do so.

Courts — Service of summons

10. The law of California, as construed by the supreme court of the United States, was controlling on supreme court of Oregon in determining validity of judgment in personam rendered by California court following service by publication of summons on defendant who resided in California at time action was instituted but who left state without having been served with summons.

Judgment — Service by publication

11. In action on California judgment in personam, evidence established that at time of service by publication of summons defendant was not domiciled in California.

Judgment — Foreign judgment

12. In action on foreign judgment, the burden was on plaintiff to prove the facts necessary to show that the California court had jurisdiction over the person of defendant.

Judgment — Service of summons

13. Alleged fact that defendant had fraudulently left California as a fugitive from civil justice and thereby prevented personal service of summons did not preclude defendant, in action on judgment in personam, rendered in California, from questioning jurisdiction of California court based upon service by publication of summons.

Judgment — Default — Validity

14. Where at time of institution of action in personam in California defendant was resident of California but before service of summons he departed from California and left no property and no place of abode in California and had no intention of voluntarily returning to California, default judgment in personam obtained in California by serving summons by publication was invalid.

                  See 21 R.C.L. 1294 (7 Perm. Supp., 5157)
                  50 C.J. Process, § 157
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JAMES T. BRAND, Judge.

Action by Reginald Laughlin against George Roy Hughes and another on a default judgment in personam obtained in California by serving summons by publication. From a judgment for plaintiff, defendants appeal.

REVERSED.

Ralph Coan, of Portland (Coan & Rosenberg, of Portland, on the brief), for appellant Hughes.

N. Ray Alber, of Portland, for appellant, George W. Ingram, trustee.

Arthur A. Goldsmith, of Portland (David Robinson and Paul L. Weiden, both of Portland, on the brief), for respondent.

KELLY, J.

The pertinent facts in this case are not in controversy. On December 26, 1929, C.L. Morrill instituted an action against defendant to recover judgment for money alleged to have been advanced by plaintiff's assignors for the use and benefit of defendant. On said date the complaint was filed in the superior court of the state of California for the city and county of San Francisco.

A writ of attachment was issued but no property was attached.

Defendant was a resident of California at the time of the institution of the action and remained in California until on or about the 29th day of January, 1930. During the latter part of January, 1930, or the first of February of that year, defendant and his wife left California, arriving in Portland, Oregon, not later than February 6, 1930.

On March 24, 1930, an affidavit for an order directing publication of summons was filed in said superior court in said case of C.L. Morrill, plaintiff, vs. G. Roy Hughes, defendant, a copy of which affidavit, omitting the title of the case and the jurat, is as follows:

"State of California, City and County of San Francisco, — ss.

Abraham Setzer, being first duly sworn, deposes and says:

That he is a male citizen of the United States over the age of twenty-one years.

That he was charged and employed by Messrs. Archibald M. Johnson and A.A. DeLigne, attorneys for the above-named plaintiff, to serve the summons in the above-entitled action. That in pursuance thereof he did duly and diligently make every effort to locate the above-named defendant, G. Roy Hughes, and to serve said summons upon him. That notwithstanding, he was unable to find defendant within the State of California. That he endeavored to locate said defendant at his last known address, 605-29th Street, Oakland, California, and at the following other addresses and places, at which he was informed defendant might be located:

521-22nd Street, Oakland, California. 17 Cambridge Avenue, San Leandro, California. Eureka, California. Los Angeles, California.

That the defendant was absent from each and all of said places and was not to be found thereat, and that no further or other address or information could be obtained as to the present location of said defendant, except that affiant was informed and believes, and therefore alleges that said defendant has departed from the State of California.

Affiant further states that it appears by the verified complaint on file herein that a cause of action exists against said defendant above named, and that he is a necessary party to said action, and that it is necessary to obtain service upon said defendant by the publication of the summons in this action, by reason of the fact that said defendant cannot after due diligence be found in the State of California.

Affiant further deposes and states that there has not been filed on behalf of defendant in the county in which the above-entitled action has been brought and is pending, a certificate of residence provided for by section 1163, Civil Code of the State of California.

That the present residence of said defendant is unknown.

Dated, March 24, 1930.

Abraham Setzer."

Based upon this affidavit an order for publication was made, which, omitting the title, is as follows:

"The affidavit of Abraham Setzer having been duly filed in the above-entitled matter, and it appearing therefrom that an effort has been made on behalf of plaintiff herein to serve summons in the above-entitled action upon said defendant, but that said defendant cannot after due diligence be found within the State of California; and it further appearing to this court that good cause exists for the service of said summons by publication, the court hereby orders and directs that publication of the summons in the above-entitled action be made in The Recorder, a newspaper published in the City and County of San Francisco, State of California, at least once a week for a period of two months;

It further appearing that the last known residence of said defendant was 605-29th Street, Oakland, California, the court hereby directs that a copy of the summons and complaint in said action be forthwith deposited in the Post Office, directed to the defendant at said last known place of residence.

Dated: March 27, 1930.

C.J. Goodell, Judge of Superior Court."

On the 19th day of December, 1930, judgment was entered, which omitting the title, is as follows:

"This cause came on regularly for trial on the 19th day of December, 1930, and it appearing to the satisfaction of this court that the defendant, G. Roy Hughes, could not be found within the State of California and that there has not been filed on behalf of said defendant in the City and County of San Francisco, State of California, in which the above entitled action is brought and is pending, a certificate of residence as provided for by Section 1163 of the Civil Code, and such facts appearing by affidavit to the satisfaction of this Court, and it also appearing by such affidavit and by verified complaint on file...