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nullity, it was as if no return or proof of service had been made. There was therefore no authority to enter the default of the defendant. The clerk in entering defaults exercises no judicial functions, but acts merely in a ministerial capacity, and unless he confines himself strictly within the statute, his acts can have no binding force: Willson v. Cleaveland, 30 Cal. 198; citing Stearns v. Aguirre, 7 Cal. 443; Kelly v. Van Austin, 17 Cal. 564; Glidden v. Packard, 28 Cal. 651. Before default can be regularly taken against a party, there must be positive and sufficient evidence in court of due service, and no substantial defect in that respect can be cured by subsequent knowledge of the fact: Johnson v. Delbridge, 35 Mich. 436. If proof of service of summons is not made as required by law, the court acquires no jurisdiction of the persons of defendants, and has no authority to render judgment against them. Any judgment rendered is therefore invalid and void: Lyons v. Cunningham, 66 Cal. 42, and cases there cited.

The default of this respondent was entered by the clerk June 17, 1885, upon no other proof of service than that furnished by this certificate. Subsequently the complaint was amended, but it does not appear that the amended complaint was ever served upon this respondent. Such service is required by section 472 of the Code of Civil Procedure, and without it no judgment by default could be entered against him. "The right to answer an amended pleading is one of which a party cannot be deprived, even after entry of default against him on the original pleading; for where a plaintiff amends in matter of substance (and in an action of partition, the bringing in of new parties alleging that they have or claim an interest in the subject of partition is matter of substance), he, in effect, opens the default on the original pleading, and must serve his amended pleading upon all the parties, including the defaulting defendant": Thompson v. Johnson, 60 Cal. 292. Findings were filed and decree entered January 29, 1886. In the findings, the court recites the fact that certain defendants, among them this respondent, had been duly served with summons, and had not appeared, and their defaults had been duly and regulary taken and entered. Appellant claims that by reason of this finding the judgment was not void, but, at most, simply voidable, and that it cannot be attacked collaterally. There would be some force in this argument if a finding of due service was conclusive proof of the fact as against a defendant who had not answered; but

under section 670 of the Code of Civil Procedure, such a finding is not conclusive as against the evidence required to be in, and when found in, the judgment roll. By reference to subdivision 1 of that section, it will be seen that if the complaint be not answered by any defendant, the summons, with the proof of service thereof, must be made a part of the judg ment roll. If it be answered, then that fact is sufficient proof of service or of waiver. In this case, that which was claimed to be proof of service was made a part of the judgment roll, and comes up as such to this court. As we have seen, the proof is a nullity, and furnished no authority for entering the default of the defendant. It follows that the judgment entered thereon was invalid and void: Lyons v. Cunningham, 66 Cal. 42. Motion to vacate a judgment on the ground that it is void is not a collateral but a direct attack: People v. Mullan, 65 Cal. 396; People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448.

But it is claimed that the court has no power to vacate a judgment so entered upon motion, after the lapse of one year. Even if this were true (but we do not concede that it is, where, as here, the judgment is void on the face of the record, and the authorities cited in support of the proposition do not sustain it), it would not help the appellant in this case; for an appeal was taken by the plaintiff from the judgment, which we have so far been considering, and the same was reversed, so far as affected the right of plaintiff to have partition of tracts A, D, and E, and affirmed in other respects: Reinhart v. Lugo, 75 Cal. 639. Tract A is the one in which the complaint admits that this respondent is, or claims to be to some extent, an owner, tenant in common, and in possession. When the judgment as to the plaintiff's rights to partition in this tract was reversed, it vacated and set aside the whole judgment as to the tract, for a judgment in partition cannot be piecemeal; and as to that tract, it was as if no judgment had been entered. The court below correctly so understood it, and when the case was tried again, again passed upon and determined the rights of all parties, including those of this respondent, in the tract. Again it acted, as before, upon the default of this respondent, evidenced and entered as before; and, as a consequence, its judgment, like the first, was, as against this respondent, "invalid and void." This judgment was entered February 12, 1889, and it was the only judgment standing against the respondent in the

case, so far as related to tracts A, D, and E. Notice of motion to vacate it was given July 8, 1889, to be heard on the 15th of the same month, and was determined on the 16th of September, 1889; so that, even according to appellant's own theory, it was not too late.

But it is claimed that the court ought not to have vacated the judgment, because at the hearing appellant made proof of the fact of service of summons at the time mentioned in the certificate above referred to. That would not justify the court in refusing to vacate the judgment. The default and judgment were void, not because there was no service, but because there was, at the time of entering the same, no proof of service. This new proof might have been sufficient to have authorized the court, at any time after it was made, if the defendant had not answered, or had leave to answer, to enter a valid default, and thereupon to proceed to a valid judgment, but it would not operate, by relation, to make that valid which, when entered, was void.

In any view we take of the case, it does not appear that the court was without jurisdiction to make the order appealed from, and there being a sufficient affidavit of merits, it does not appear that there was any abuse of discretion.

Order affirmed.

THE OPENING STATEMENT in the foregoing decision, that when an order has been made setting aside a default and permitting an answer to be filed, the appellate court will not interfere with it unless made without jurisdiction, except where it is a manifest abuse of discretion of the trial court, is unquestionably correct, and the case might have been disposed of by that statement without expressing an opinion upon the other matters to which the court referred.

The balance of the opinion contains a remarkable statement concerning the jurisdiction of courts, and we know not whether to attribute it to a temporary suspension of the faculty of memory on the part of the court, or to its desire to overrule numerous well-considered cases without exhibiting any knowledge of their existence. The court declares, in effect, that it is not the service of process which gives courts jurisdiction, but the proof of such service; that if the proof is defective, it is immaterial that the service was perfect; and the proof being imperfect, there is no way in which the judgment can be sustained by showing the facts regarding the service of process as they really existed when it was entered. The very reverse of this we apprehend to be the law. It is the fact of the service of process which confers jurisdiction, and it is a familiar practice in California, as well as elsewhere, when the proof of such service is absent or defective, to permit it to be amended or supplied. The court here says the proof, when so amended or supplied, "would not operate, by relation, to make that valid which, when entered, was void." True, it cannot make valid that which was void. But if the process was served, the judgment never was void. The object of sup

plying and amending proof of service of process, is not to make void valid, but to make valid valid; or in other words, it is to show the true character of the judgment; that it is not and never was void, as might be inferred in the absence of proof of the service, but is and ever has been valid.

To support judgments entered upon insufficient proof of service of process, or without the proof of such service appearing in the record, courts have uniformly permitted such proof to be amended or supplied, not for the pur pose of authorizing them to enter new judgments based upon such proof, but to show that judgments previously entered were not entered without jurisdiction, and are not and never were void: Allison v. Thomas, 72 Cal. 562; 1 Am. St. Rep. 829; Shenandoah V. R. R. Co. v. Ashby's Trustees, 86 Va. 232; 19 Am. St. Rep. 891; Burr v. Seymour, 43 Minn. 401; 19 Am. St. Rep. 245; Estate of Newman, 75 Cal. 213; 7 Am. St. Rep. 146; Frisk v. Reigelman, 75 Wis. 499; 17 Am. St. Rep. 198; Freeman on Judgments, 4th ed., sec. 89 b.

BERONIO V. SOUTHERN PACIFIC RAILROAD COMPANY.

[86 CALIFORNIA, 415.J

Judgment, MERGER BY.—ONE TORT CAN GIVE BUT ONE CAUSE OF ACTION, though it injures different parcels of property. Hence if a railway is wrongfully constructed and operated along a street in front of two lots situated a short distance from each other, but belonging to the same proprietor, and he brings an action to recover damages occasioned to one lot by the railroad, his claim for damages to both is merged in the judgment, and there can be no further recovery.

H. L. Poplin, and Barnes and Shelby, for the appellant.

R. B. Canfield, and Blackstock and Shepherd, for the respondent.

Fox, J. The town of San Buenaventura is a municipal corporation. The legal title to the lands comprising Front Street in said town was granted to the then town authorities October 13, 1869, "as a public street, to be forever kept open and maintained as such, and not to be used for any other purpose, nor be diminished in width." On the 4th of October, 1886, the president and board of trustees of the town, by ordinance, granted to the defendant a right to lay, maintain, and operate a single or double track railroad along and upon said Front Street for the whole length thereof, from a point near KaloDama Street, etc. The plaintiff owned two lots fronting on the north side of said street, one situate in block 19, and one in block 20, the two being separated by a distance of 260 feet. The railroad was constructed along said Front Street prior to September 13, 1888, and on that day plaintiff commenced an action against defendant for damages to his lot situate in

block 19, by reason of a cut and fill made in the construction thereof, and on the twenty-sixth day of January, 1889, the amount of plaintiff's damages were agreed upon and settled between the parties, and paid by defendant to plaintiff, and thereafter, in pursuance of the agreement between the parties, judgment was entered in the cause in favor of defendant. Afterwards the defendant put in a switch on the south side of the street, opposite said block 19, and thereupon the plaintiff brought this action, alleging in the first count of his complaint damages by reason of the construction and maintenance of said railroad in front of his lot in block 20, and in the second count, damages to his said lot in block 19, accrued since the former settlement and judgment, by reason of the continuance of said railroad, and the operation thereof, and of the construction of said switch in front of his said lot in block 19.

The defendant denied all the allegations of the complaint other than those of incorporation, pleaded its license from the municipal authorities, and as a separate defense to the second cause of action, pleaded the former settlement, payment, and judgment in bar. At the trial, after the jury was impaneled, but before the introduction of any evidence, defendant moved the court for leave to amend its answer, by pleading the former settlement and judgment as a bar to all the causes of action set out in the complaint. To this the plaintiff objected, on the ground that the amendment did not constitute a defense. After argument, the court overruled the objection, and the amendment was made, the court not imposing terms, to which plaintiff excepted, but plaintiff asked no continuance on account of such amendment. Plaintiff then introduced some evidence tending to show damage to his lot in block 20 by reason of the construction of said railroad, a cut of eighteen. inches in depth having been made in the street by reason thereof. Defendant then introduced the judgment roll in the former case, which was admitted without objection, and it was admitted by the parties that the parties to that action were the same as to this; that the railroad mentioned in the former complaint was one and the same railroad as that mentioned in this case; that plaintiff at the time owned the same lots as now, and was then the owner of the same cause of action upon which he now claimed under his first count of the present complaint; and that the said two lots were separated by a distance of 260 feet. Plaintiff then proposed to introduce further evidence as to his damage to the lot situate in block 20,

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