89 P. 615 | Cal. | 1907
On July 24, 1903, plaintiff recovered judgment against the defendant above named. The judgment was rendered upon the default of said defendant, duly entered for its failure to appear after due personal service of summons. On October 24, 1904, more than a year afterward, the defendant served on plaintiff a notice of motion to set aside the default and judgment. The ground of the motion, as stated in the notice, was that the judgment is void on the face of the record, for want of jurisdiction. The motion was denied and the defendant appeals from the order.
The complaint states in the usual form a cause of action to determine adverse claims to real property, as provided in section
The contention of the defendant is that the cause of action stated in the complaint is not an action under section
Four other persons were made defendants under the fictitious names of John Doe, Richard Roe, Jane Doe, and Mary Roe, it being alleged that their names were unknown to plaintiff. This does not bring the case within section
We would not be understood to intimate, by anything in this opinion, that a judgment in a proceeding under sections 749, 750, and 751, against a named defendant who was personally served with the summons, would be void if the proceedings were lacking in the respects in which it is claimed the present proceedings fail. As this is not such a proceeding, it is unnecessary to consider whether or not the alleged defects would render it void, if it was a proceeding of that character.
It is claimed that the judgment is void because the record does not show that the court heard or required evidence in proof of the plaintiff's case. This was not necessary on default in an ordinary action, where the summons is personally served, except where the taking of an account, or the proof of damages or of some other fact, is necessary to enable the court to give judgment or carry it into effect. (Code Civ. Proc., sec. 585.) Here no such proof was required. The default of the defendant in an ordinary action of this character admits, so far as such defaulting defendant is concerned, the absolute verity of all the allegations of the complaint. No amount of evidence could establish the facts more effectually for the purpose of rendering the judgment, as against such defendant.
The order is affirmed.
*650Angellotti, J., and Sloss, J., concurred.