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District Court of Appeal, Second District, Division 2, California.


Civ. 11817

Decided: July 26, 1938

Caryl Warner, of Los Angeles, for appellant. Irving B. Drachlis, of Los Angeles, for respondent.

This is an appeal from an order setting aside a judgment against Frazier McIntosh upon the ground that said judgment was void upon its face.

Back in 1928 this action was started with Steuri as plaintiff and Junkin as defendant. Thereafter Junkin filed an answer and counterclaim in which he asked judgment against Frazier McIntosh. This latter was the first and only pleading wherein a claim was asserted against McIntosh, who was not theretofore at least, a party to the suit. Appellant now designates this counterclaim as a cross-complaint, but it is nowhere so designated in the record. No summons was ever issued upon this counterclaim, nor was personal service ever had upon McIntosh as a party or otherwise. The so-called cross-complaint was served by leaving a copy with McIntosh's secretary. Default was entered on this so-called cross-complaint against the plaintiff and judgment was entered against the plaintiff and also against McIntosh for the sum of $6,285. So far as the record shows, no default was taken against McIntosh. Neither did he appear in the action.

McIntosh filed an affidavit in support of his motion to vacate the judgment wherein he alleged that the levy of execution upon said judgment first called the existence of the judgment to his attention on or about the 29th day of December, 1937, and thereupon he promptly noticed a motion to vacate said judgment upon the ground that said judgment is void upon its face. Mr. Junkin had assigned said judgment to appellant on December 28, 1937.

It is the contention of the appellant that upon a collateral attack, it will be presumed that all the essential jurisdictional facts did in fact exist, and therefore it will be presumed that McIntosh did in fact voluntarily appear in the action, and that the trial court had jurisdiction over his person at the time it rendered judgment against him, and that there is nothing in the judgment roll which opposes the foregoing, citing 15 California Jurisprudence 59, section 145.

Assuming that the alleged counterclaim was a cross-complaint, said pleading was not served upon him. The judgment does not recite service upon him, or his appearance, or default. But, on the contrary, the judgment roll shows that the service was upon the secretary of McIntosh, not upon him. When what occurred is conclusively established by the record, the contrary cannot be presumed. Where the record speaks as to what was done on the subject of service, it will not be presumed that something other, different or additional was done, and where what was done is insufficient as a matter of law to give the court jurisdiction, the judgment is void on its face where the remainder of the record is silent upon the question of service, appearance and default of the party affected. Hahn v. Kelly, 34 Cal. 391, 94 Am.Dec. 742. It is true that where the record is silent as to what was done it will be presumed that what ought to have been done was not only done but rightly done. But back of that rule is the rule that legal presumptions do not come to the aid of the record except as to acts or facts touching which the record is silent. When the record states what was done, it will not be presumed that something different was done. Grinbaum v. Superior Court, 192 Cal. 528, 221 P. 635. In the case of Johnston v. Southern Pacific Company, 150 Cal. 535, 89 P. 348, 11 Ann.Cas. 841, it is stated (page 349): “Therefore, whenever the record states the evidence or makes an averment with reference to a jurisdictional fact it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than is averred.” 15 Cal.Jur. 70, sec. 151.

Section 442 of the Code of Civil Procedure provides with regard to the service of a cross-complaint. “The cross-complaint must be served upon the parties affected thereby. * If any of the parties affected by the cross-complaint have not appeared in the action, a summons on the cross-complaint must be issued and served upon them in the same manner as upon the commencement of an original action.” The judgment is void upon its face.

Order affirmed.

CRAIL, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.

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