Johnson v. Babcock

California Court of Appeal

Johnson v. Babcock

202 P. 898, 55 Cal. App. 84, 1921 Cal. App. LEXIS 75

CourtCalifornia Court of Appeal

DecidedNovember 5, 1921

DocketCiv. No. 3723.

StatusPublished

This text of 202 P. 898 (Johnson v. Babcock) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnson v. Babcock, 202 P. 898, 55 Cal. App. 84, 1921 Cal. App. LEXIS 75 (Cal. Ct. App. 1921).

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Opinion

CONREY, P. J.

Action to annul a judgment of the superior court upon the ground that appellant, who was a defendant in that action and who never appeared therein, was never served with any summons or complaint in that action.

On the trial of this present action the court found that in the former action a true and correct copy of the summons and complaint was served, as shown by the return contained in the judgment-roll, and that the default and judgment were regularly and duly entered. The appeal rests entirely upon the contention that the evidence is not sufficient to sustain the findings of fact.

Appellant testified that' she never was served with a copy of summons and complaint, or with a summons and complaint, in the former action, and did not learn that there had been any such action until a time nearly three years after the judgment had been entered. The testimony of her brother and of her husband is corroborative of *85 appellant’s testimony in this, that she never mentioned the said former action to either of them, and that their relations with her were such that probably the case would have been discussed with them if the summons had ever been served upon Mrs. Johnson. Such, at least, appears to have been the opinion of those witnesses.

On the other hand, the judgment-roll in the former action contains a return in the form of an affidavit made by one Harry C. Clark, subscribed and sworn to by him on the fourth day of January, 1916, wherein he stated that on that day he personally served the summons on the defendants therein named (who were Fannie and Emery F. Johnson) by delivering to and leaving with each of said defendants personally, in the county of San Diego, California, a copy of the summons attached to a copy of the complaint in that action. Sworn as a witness in the present case, Mr. Clark, having first examined the return on the summons, testified that he did serve-the summons and that he did deliver a copy of the summons and complaint to the said defendants in that action, and made his return accordingly. “Q. Was that done upon both of them? A. It was. Q. And you made your return accordingly? A. Tes, sir.” Answering as to the place of service, he said, “My memory would be it was a residence.” But he admitted that he could not remember the details of the service and that he did not, have any distinct recollection concerning the same; that he had no recollection except from that return; that in making his statements he was going by the return.

[1] The foregoing evidence is sufficient to sustain the findings of the court. “A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution.” (Code Civ. Proc., sec. *86 2047; Estate of Moore, 180 Cal. 570, 585 [182 Pac. 285]; People v. McFarlane, 138 Cal. 481, 488 [61 L. R. A. 245, 71 Pac. 568, 72 Pac. 48].)

The judgment is affirmed.

Shaw, J., and James, J., concurred.

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CONREY, P. J.

Action to annul a judgment of the superior court upon the ground that appellant, who was a defendant in that action and who never appeared therein, was never served with any summons or complaint in that action.

On the trial of this present action the court found that in the former action a true and correct copy of the summons and complaint was served, as shown by the return contained in the judgment-roll, and that the default and judgment were regularly and duly entered. The appeal rests entirely upon the contention that the evidence is not sufficient to sustain the findings of fact.

Appellant testified that' she never was served with a copy of summons and complaint, or with a summons and complaint, in the former action, and did not learn that there had been any such action until a time nearly three years after the judgment had been entered. The testimony of her brother and of her husband is corroborative of *85 appellant’s testimony in this, that she never mentioned the said former action to either of them, and that their relations with her were such that probably the case would have been discussed with them if the summons had ever been served upon Mrs. Johnson. Such, at least, appears to have been the opinion of those witnesses.

On the other hand, the judgment-roll in the former action contains a return in the form of an affidavit made by one Harry C. Clark, subscribed and sworn to by him on the fourth day of January, 1916, wherein he stated that on that day he personally served the summons on the defendants therein named (who were Fannie and Emery F. Johnson) by delivering to and leaving with each of said defendants personally, in the county of San Diego, California, a copy of the summons attached to a copy of the complaint in that action. Sworn as a witness in the present case, Mr. Clark, having first examined the return on the summons, testified that he did serve-the summons and that he did deliver a copy of the summons and complaint to the said defendants in that action, and made his return accordingly. “Q. Was that done upon both of them? A. It was. Q. And you made your return accordingly? A. Tes, sir.” Answering as to the place of service, he said, “My memory would be it was a residence.” But he admitted that he could not remember the details of the service and that he did not, have any distinct recollection concerning the same; that he had no recollection except from that return; that in making his statements he was going by the return.

[1] The foregoing evidence is sufficient to sustain the findings of the court. “A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution.” (Code Civ. Proc., sec. *86 2047; Estate of Moore, 180 Cal. 570, 585 [182 Pac. 285]; People v. McFarlane, 138 Cal. 481, 488 [61 L. R. A. 245, 71 Pac. 568, 72 Pac. 48].)

The judgment is affirmed.

Shaw, J., and James, J., concurred.

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