acts were or were not done, it has been held that the recital in the record, although not contradictory of the officer's return, can not be held to add thereto, but must be held to be a statement that the acts shown by the return to have been done constituted due service, and that the return must control the recital.'

There is a clear distinction between a want of service and a defective service. If there has been an attempted service, and the question is one of fact as to whether the proper service was made, or one of law, whether the acts done constituted sufficient service or not, the presumption will be indulged that the court considered and determined the question, and the defect can only be taken advantage of by a direct attack. This rule has been held to apply as well to constructive as to actual notice.3 And the recitals in the record of a court of general jurisdiction showing that jurisdiction has been obtained by constructive service, are sufficient to uphold the judgment as against a collateral attack, where the same is not disputed by the record itself.*

The cases cited go a long way to uphold a judgment by the recitals in the record. It is held that such recitals are conclusive in case of a collateral attack, even as against the affidavit for an order of publication and the order itself, on the ground that such affidavit and order are not parts of the judgment roll, and can not be looked to to dispute the recitals in the judgment. In California, certain papers and documents constitute the judgment roll. The judgment roll constitutes the record in the absence of a bill of exceptions, or statement on appeal, which can only become part of the record in case of a direct attack. Consequently, as the affidavit and order for publication constitute no part of the judgment roll, or record, to al

1 Settlemier v. Sullivan, 97 U. S. 444.

2 Ante, secs. 22, 23; Freeman on Judg., sec. 126.

3 In re Newman, 75 Cal. 213; 16 Pac. Rep. 887; Sichler v. Look, 93 Cal. 600; 29 Pac. Rep. 220.

* McCauley v. Fulton, 44 Cal. 355, 361; In re Newman, 75 Cal. 213; 16 Pac. Rep. 887; Sichler v. Look, 93 Cal. 600; 29 Pac. Rep. 220.

low the recitals in the record to be disputed by such affidavit or order would be to allow a judgment, valid on its face, to be attacked by matters dehors the record, which is not allowed in case of a domestic judgment.'

Where the affidavit or other proceeding necessary to give jurisdiction is a part of the judgment roll, or of the record, and it appears therefrom that the necessary steps were not taken, a recital in the record showing jurisdicdiction will not prevail against the record itself.2

Where the attack upon the judgment is direct, it has been held that a recital of service in the record will not supply the place of the necessary affidavit, order, and proof of publication.3

The means by which a judgment may be assailed and overthrown, by showing want of jurisdiction, depend upon whether the attack is direct or collateral. In case of an attack upon a domestic judgment of a court of general jurisdiction, if the attack is collateral, the mere entry of a judgment is conclusive that the court had jurisdiction to enter it, unless the record shows to the contrary. If the attack is direct, the defendant may, by bill of exceptions, present evidence outside of the record to show a want of jurisdiction. But in either case the record is conclusive. unless directly disproved, and such proof properly incorporated in the record and made a part of it by bill of exceptions, or some other authorized mode."

1 Ante, secs. 22, 23.

* Barber v. Morris, 37 Minn. 194; 33 N. W. Rep. 559.

'Weeks v. Gold Mining Co., 73 Cal. 599; 15 Pac. Rep. 302.

Sichler v. Look, 93 Cal. 600, 605; 29 Pac. Rep. 220; Lyons v. Roach, 84 Cal. 27; 23 Pac. Rep. 1026.

"The presumption of verity which attaches to the record of a domestic judgment is the same upon a direct appeal therefrom as exists in a collateral attack, the only difference being that upon a direct appeal it is essential for the party seeking to sustain the judgment to show by the record itself that the court had jurisdiction of the defendant, whereas in a collateral attack the entry of the judgment is itself conclusive of such jurisdiction. Upon a direct attack, there is no presumption in favor of the existence of any fact essential to the jurisdiction of the court over the defendant; but in all matters of which the judgment contains a record, its verity, in the absence of any contradictory evi

The general rule is that where a court has once acquired jurisdiction, it has a right to decide every question which

dence, will be presumed as fully as upon a collateral attack. The de fendant may, upon a direct appeal, by bill of exceptions, present evi dence outside of the record for the purpose of showing that the court did not have jurisdiction over him, while in a collateral attack such objection is available only when it appears from t ehrecord itself. In both cases the record is conclusive as to all matters as to which it speaks, unless impeached in the foregoing manner. As was said by Mr. Justice McFarland in Lyons v. Roach, 84 Cal. 30: The main difference between collateral and direct attack is, that in the former the record alone can be inspected, and is conclusively presumed to be correct; while on direct attack the true facts may be shown, and thus the judgment itself on appeal may be reversed or modified.' The recitals in a judgment are the court's record of its own acts. and although upon a direct appeal the jurisdiction of the court is not to be established by its mere assertion in the judgment that it had acquired jurisdiction, yet if such recital finds support in other portions of the record, which under any condition of facts could exist, it will be presumed, in the absence of any contradictory showing, that such condition of facts existed.

"The record of the judgment is the judgment roll. The documents which shall constitute this record are specified in section 670 of the Code of Civil Procedure to be: 'In case the complaint be not answered by any defendant, the 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;' and section 415 of the Code of Civil Procedure provides that proof of the service of summons and complaint must be:

3. In case of publication, the affidavit of the printer, or his foreman or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the post-office, if the same has been deposited.' "Under these provisions, we must hold that the record of the judgment in the present case affirmatively shows that the court had jurisdiction of the appellant. It is recited therein that he had been 'duly and regularly summoned,' and there is found in the judgment roll, in support of this recital in the judgment, an affidavit of publication o the summons, and of a deposit of a copy thereof, as required by the statute. The statute has provided that, under certain circumstances, the court may obtain jurisdiction of a defendant by a service of the summons by publication, and what shall be the proof of such service; and in support of the judgment of the court, it will be presumed upon a direct appeal, in the absence of any evidence to the contrary, that this mode of service was made under a proper order of the court therefor, and that a sufficient affidavit for such order was presented to the court before making the order.

"The order of publication bearing date September 23, 1890, can not be considered for the purpose of impeaching the record of the judg

arises in the cause, and it will be presumed that its jurisdiction was properly exercised throughout.' But this is so only where the court has, after obtaining jurisdiction, proceeded according to the established modes governing the class to which the case belongs, and has not transcended, in the extent or character of its judgment, the law applicable to such cases. It is said that there can be no presumption in favor of jurisdiction of the person in case of default without appearance or service. This is undoubtedly true where the attack is on appeal. In such case it is held that the record must show affirmatively that the defendant was served, or the cause will be reversed.* But it will be seen that in some, at least, of the cases cited, it was held that the entry of judgment by default, without a showing in the record of service, was erroneous because the statute required that in case of a judgment by default the summons and return, or notice and proof of publication thereof, must be a part of the record. none of the cases is the judgment held to be void for want of jurisdiction. They hold that such a judgment is erroneous. There is no distinction between a judgment by

In

ment, and can not be used in contradiction of such record, any more than any other order or minute of the court made in the action. Upon an appeal from a final judgment, the only papers that can be considered, where there is no bill of exceptions, are the notice of appeal and judgment roll. (Spinetti v. Brignardello, 53 Cal. 283.) If the appellant had desired to show that no order for publication was made until September 23d, and that the publication and mailing of the summons were premature and unauthorized, he should have presented such facts in a bill of exceptions by which the proofs upon which he would rely would be properly authenticated." Sichler v. Look, 93 Cal. 600, 605; 29 Pac. Rep. 220.

1 Wells' Jur., sec. 38.

2 Windsor v. McVeigh, 93 U. S. 274; ante, sec. 22.

Elliott's App. Pro., sec. 716.

Rany r. The Governor, 4 Blkf. (Ind.), 2; Cochnower v. Cochnower, 27 Ind. 253; Houk v. Barthold, 73 Ind. 21, 28; New Albany, etc., R. R. Co. r. Welsh, 9 Ind. 479; Townsend . Townsend, 21 Ill. 540; Cole v. Allen, 51 Ind. 122; Wilkinson v. Bayley, 71 Wis. 131; 36 N. W. 836; Sichler v. Look, 93 Cal. 600; 29 Pac. Rep. 220. Cochnower v. Cochnower, 27 Ind. 254; New Albany, etc., R. R. Co. v. Welsh, 9 Ind. 479.

Rep.

default and any other judgment in respect of the presumption of jurisdiction where the attack upon it is collateral. It will be presumed that the judgment was supported by and within the issues raised by the pleadings, and that it is supported by whatever is essential to its validity. Where the action is one affecting real estate, and the complaint does not show where the land is situated, it will be presumed to have been within the jurisdiction of the court. Where the jurisdiction of an inferior court has attached, the same presumption prevails in favor of its subsequent proceedings that does in favor of those of a superior court.*

26. EFFECT OF WANT OF JURISDICTION.-The general rule is that a judgment rendered by a court without jurisdiction of the subject-matter, or of the person of the defendant, is absolutely void. But this is not true in all cases A judgment may show on its face that the court had jurisdiction when in fact it had not. In such case, with respect to domestic judgments of courts of general jurisdiction, the general rule is that the showing of juris diction, on the face of the record, is conclusive as against a collateral attack. Therefore, the judgment is not void, but voidable only. So the judgment of a domestic court of general jurisdiction may be valid, although the court was without jurisdiction to render it, because the judg

Hahn r. Kelly, 34 Cal. 391, 402; 94 Am. Dec. 742; Sichler v. Look, 93 Cal. 600; 29 Pac. Rep. 220; Crane v. Kimmer, 77 Ind. 215, 218; Iles v. Watson, 76 Ind. 359, 361; Anderson v. Gray, 134 Ill. 550; 25 N. E. Rep. 843. 2 Elliott's App. Pro., secs. 718, 719.

3 Ante, secs. 11, 15; Brown v. Anderson, 90 Ind. 93; Warmoth v. Dryden, 125 Ind. 355; 25 N. E. Rep. 433.

4 Cooper v. Sunderland, 3 Ia. 114; 66 Am. Dec. 52; Pursley v. Hayes, 22 Ia. 11; 92 Am. Dec. 350, 374, note.

5 Webb 1. Carr, 78 Ind. 455; Lovejoy v. Albee, 33 Me. 414; 54 Am. Dec. 630; Rodgers v. Evans, 8 Ga. 143; 52 Am. Dec. 390, 392, note; I Black on Judg., sec. 218; Freeman on Judg., sec. 120; 12 Am. & Eng. Enc. of Law, 311; Swiggart v. Harber, 4 Scam. 364; 39 Am. Dec. 418; Hahn r. Kelly, 34 Cal. 391; 94 Am. Dec. 742.

Ante, secs. 23, 25; 1 Black on Judg., sec. 218; Hahn r. Kelly, 34 Cal. 391; 94 Am. Dec. 742.