Lyons v. Cunningham

Opinion — McKee

McKee, J.

The judgment appealed from is a default judgment, which was entered against the defendants upon proof of service of summons by the following affidavit of service, subscribed and sworn to on the 19th of January, 1881: “ George Corn-stock being duly sworn, says that he is a white male citizen of the United States, over the age of eighteen years, and not a party to, or interested in, the above entitled action. That he served the annexed summons in said action on the 13th day of December, 1880, upon Patrick Cunningham, executor of the last will and testament of Mary Cunningham, deceased, therein named defendant,” etc.

Proof of service of summons in a case by a person other than the sheriff is a condition precedent to judgment by default. If such proof is not made, as required by law, the court acquires no jurisdiction of the persons of defendants, and has no authority to render judgment against them. Any judgment rendered is, therefore, invalid and void. ( Weise v. Bennett, 9 P. C. L. J. 626; Howard v. Galloway, 60 Cal. 10; Maynard v. McGrellish, 57 Cal. 355.)

In this case the affidavit does not expressly state that the person making the service was over the age of eighteen at the time of making the service. But it is claimed that the words “ a white male citizen of the United States ” denote an elector; that an elector is a male citizen twenty-one years of age and upwards; *44and as the person serving the summons was twenty-one years of age on the 19th of January, 1881, it follows that he was at the time of the service of summons, on the 13th of December, 1879, over eighteen years of age.

It is true that a citizen, in the full acceptation of that term, may be said to be a member of the civil State, entitled to all its privileges. But the possession of all political rights is not essential to citizenship. (People, etc., v. De la Guerra, 40 Cal. 311.) The term has quite a comprehensive meaning. It includes citizens of the State, and citizens of the United States, and these include political and civil citizens—electors and non-electors. (§§ 50, 51, Pol. Code.) Every male citizen of the State and of the United States is not necessarily an elector. It is provided not only by the constitution of the State, but by the constitution of the United States, that all male citizens twenty-one years of age and upwards shall be entitled to vote. But the affiant does not state that he is twenty-one years of age, and entitled to vote. He may not be, and yet be a citizen. Presumptively, therefore, although a citizen of the United States, over eighteen years of age, he is a citizen under the age of twenty-one years, and therefore a non-elector. (§ 60, Pol. Code.)

The affidavit of service was insufficient to sustain the judgment.

Judgment reversed, and cause remanded for further proceedings.

Ross, J.r and McKinstry, J., concurred.