plaintiff from the files of the court is a nullity,70 unless so ordered by the court.”1

An affidavit of the personal service of summons may be amended by leave of the court after judgment, to supply nunc pro tunc the statement omitted by inadvertence that the affiant was over the age of eighteen years when he made the service. And although the practice of allowing such amendment to be made without notice is not to be commended, yet where it was allowed ex parte, and the defendants had subsequent notice and a full opportunity to take steps to have the truth of the matter ascertained and did not ask to have the order vacated for any reason, or controvert any facts stated therein, the ex parte order allowing the amendment, and directing that the amended affidavit be made part of the judgment-roll, will not be disturbed upon appeal.72 An ex-sheriff cannot amend a return of service made by his deputy during his term of office.73

§ 1091.

Conclusiveness of return or certificate.-A motion to vacate a judgment for want of jurisdiction being a direct attack, the want of jurisdiction may be shown by matters outside the record; but a judgment cannot be overcome by evidence of any lower degree.75

74

The recital in the officer's return is not conclusive as to the particular place being the place of defendant's abode; but the return made by a disinterested person is prima facie evidence of the material facts stated therein."

§ 1092. Evidence and presumptions.-Where the return of a sheriff states that he served the defendant with a certified copy of the complaint, the clerk being the only one allowed to certify such copies, it will be presumed that the certification was by him;78 and where the summons is served, after having been first returned, and the court thereupon assumes jurisdiction of the defendants

70 Fanning v. Foley, 99 Cal. 336, 33 Pac. 1098.

V. Sandlin,

14

71 Ridenbaugh Idaho, 472, 125 Am. St. Rep. 175, 94 Pac. 827.

72 Woodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 2, 542.

73 Knapp v. Wallace, 50 Or. 348, 126 Am. St. Rep. 742, 92 Pac. 1054.

74 Dane v. Daniel, 28 Wash. 155, 68 Pac. 446.

75 Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007.

76 Krutz v. Isaacs, 25 Wash. 566, 66 Pac. 141.

77 Northwestern & Pac. etc. Bank v. Ridpath, 29 Wash. 687, 70 Pac. 139. 78 Curtis v. Herrick, 14 Cal. 117, 73 Am. Dec. 632.

80

and renders judgment against them, it will be presumed that the court made the requisite order permitting the summons to be withdrawn for future service.79 Where a writ, as returned by a sheriff, is served, but the place of service is not stated therein in the return, the court will presume that it was served within his jurisdiction. So, also, where the record shows that summons was served by the coroner, the court must presume, in the absence of a contrary showing, that the sheriff was disqualified under the statute.81 If the affidavit does not state where the defendant resided, it will be presumed that he resided in the county where the service was made.82

It is competent for the court to allow in evidence a second affidavit showing that publication was made on the date omitted in the first affidavit.83

84

§ 1093. Acknowledgment of service. An acknowledgment of service must be in writing and signed. Courts will take judicial notice of the signatures of their officers as such, but there is no rule which extends such notice to the signatures of parties to an action. When, therefore, the proof of service of summons consists of the written admissions of the defendants, such admissions, to be available in the action, should be accompanied by some evidence of the genuineness of the signatures of the parties. In the absence of such evidence, the court cannot notice them.85 A party is bound by an acknowledgment of service outside of the territorial jurisdiction of the court to which it is returnable.86

The statute does not require an admission of the service to designate the place where the service was made; the object of such designation, when required, is to determine the period within which the answer must be filed or when default may be taken.87 Where the defendant's attorneys accept service of summons and attach no date thereto, the date of the return by the sheriff is held to be the true date of the service.88

79 Hancock v. Preuss, 40 Cal. 572; Coffin v. Bell, 22 Nev. 184, 58 Am. St. Rep. 740, 37 Pac. 240.

80 Crane v. Brannan, 3 Cal. 192. 81 Rodolph v. Mayer, 1 Wash. T. 133.

82 Calderwood v. Brooks, 28 Cal. 151; Pellier v. Gillespie, 67 Cal. 582, 8 Pac. 185.

83 Howard v. McChesney, 103 Cal. 536, 37 Pac. 523.

81 Montgomery v. Tutt, 11 Cal. 307. 85 Alderson v. Bell, 9 Cal. 321; Moffit v. McGrath, 25 Or. 480, 36 Pac. 578.

86 Cheney v. Harding, 21 Neb. 65, 31 N. W. 255.

87 Alderson v. Bell, 9 Cal. 315.
88 Crane v. Brannan, 3 Cal. 192.

FORMS FOR PROOF OF SERVICE.

§ 1094. Return of sheriff on summons-General form.

Form No. 362.

[STATE AND COUNTY.]

Office of the Sheriff,

[COURT.]

City and County of.

I hereby certify that I received the within summons on the . . day of . . ., 19. ., and personally served the same on the . . . day of . . ., 19.., by delivering to [names], said defendants personally, in the city and county of . a copy of said summons attached to a true copy of the complaint in the said action therein named. Dated at of..., 19..

.

this. . . day of . . .,

G. H., Sheriff.

§ 1095.

By J. K., Deputy Sheriff.

Where one defendant was not found.

Form No. 363.

I further certify that I have made diligent search for the defendant A. B., named in said summons, but have been unable to find him within my said county.

A. B., being duly sworn, deposes and says:

I received the annexed summons in the above-entitled cause on the . . . day of . . ., 19.., and on the . . ., day of . . ., 19.., personally served the same, by delivering to C. D., one of said defendants, personally, in the city and county of San Francisco, a copy of said summons, attached to a copy of the complaint in the above-entitled cause, and by leaving the same with him, and also, on the . . . day of . . ., 19.., by delivery to E. F., one of said defendants, personally, in the city and county aforesaid, a copy of said summons, and also, personally, on the . . . day of . . ., 19..,

by delivering to G. H., one of said defendants, in the city and county of San Francisco, a copy of said summons; and I further depose that each of said defendants was, on said mentioned days, resident of the said city and county of San Francisco; and I further depose that I am, and was at all the times hereinbefore named, a citizen of the United States, over eighteen years of age, and not a party to the above-entitled action.

Subscribed and sworn to, etc.

§ 1097. Affidavit of service of summons-Another form.

being duly sworn, deposes and says that he is, and at the several times hereinafter mentioned was, a citizen of the United States, above the age of eighteen years, and not a party to the aboveentitled action; that he received the annexed summons in said action on the... day of . . ., A. D. 19.., and personally served the same upon the above-named defendant, on the . . . day of the said defendant, per

A. D. 19.., by delivering to sonally, in the . ., county of .

.

a copy of said summons,

attached to a copy of the complaint in said action. [JURAT.]

§ 1098. Admission of due service.

Form No. 366.

[SIGNATURE.]

Due service of the within [give name of paper] by copy is hereby admitted this. . . day of . . ., 19..

A. B., Attorney for . . [Add acknowledgment, if the admission is made by a party not an attorney.]

§ 1099. Simple admission, not conceding it to be timely.

Form No. 367.

Service of the within [give name of paper] is hereby admitted this. . . day of

19..

CHAPTER XLII.

APPEARANCE.

§ 1101. What constitutes.-The codes generally provide that a defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice or appearance for him. After appearance a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice of papers need not be made upon him, unless he is imprisoned for want of bail.1

A defendant may appear and submit himself to the jurisdiction of the court in many ways without either answering, demurring, or giving the plaintiff written notice of his appearance; and the fact that he misapprehends the character of the action when he answers does not detract from his appearance made by answer. He may do this by appearing in person or by an attorney in open court, by attacking the complaint by motion, or by an application for a continuance, and in many other ways. But before he can as a matter of right be held in the action or in any proceeding pertaining thereto, or be served with notice, he must appear in the manner prescribed by statute. The only purpose of the statute defining the mode of appearance is to state what shall constitute a technical appearance as shall give him these rights. A notice by an attorney to the plaintiff's attorney that the defendant will move before a court commissioner that an attachment issued in the case be dissolved does not constitute an appearance in the action. It has been held that when a defendant appears for the purpose of taking advantage of an irregular summons by a motion to dismiss, it does not amount to a waiver of his rights so as to cure the defect." A

1 Cal. Code Civ. Proc., § 1014; Or. B. & C. Codes, § 542.

2 Tyler v. McKenzie, 43 Colo. 233, 95 Pac. 943.

3 Belknap v. Charlton, 25 Or. 41, 34 Pac. 758.

4 Id.

Glidden v. Packard, 28 Cal. 649; Belknap v. Charlton, 25 Or. 41, 34 Pac. 758.

6 Lyman v. Milton, 44 Cal. 631; Arroyo etc. Water Co. v. Superior Court, 92 Cal. 52, 27 Am. St. Rep. 94, 28 Pac. 54; Black v. Clendenin, 3 Mont.