Summary
In Joyce v. Joyce, 5 Cal. 449, it was held, that such a return was insufficient to prove service; and that the act and return of a deputy is a nullity, unless done in the name and by the authority of the Sheriff.
Summary of this case from Rowley v. HowardOpinion
Appeal from the District Court of the Fourth Judicial District, San Francisco County.
COUNSEL:
Howard & Perley, for Appellant.
Crockett & Page, for Respondent.
No authorities were cited by counsel.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
This was a judgment and decree by default in a suit for divorce.
The record has a certificate of service of the complaint, on the defendant, in Humboldt County, signed by " J. C. Butler, undersheriff." This is insufficient to prove service. It is only by virtue of his official position, that the return of the sheriff is conclusive, and of such the Courts must take judicial notice. But the Courts cannot know an under-sheriff, and the act and return of a deputy is a nullity unless done in the name, and by the authority of the sheriff.
The record, therefore, does not show that the defendant was brought into Court by service, and for this reason the judgment is reversed, and the cause remanded.
Affirmed, Rowley v. Howard , 23 Cal. 401. See 3 Nev. 385.