| Cal. | Jul 1, 1856
Mr. Justice Terry concurred.
The first point relied on is, that the affidavit of publication is not sufficient to have authorized the publication for the purpose of effecting service on the defendant. Under the circumstances of this ease, we could not disturb the judgment on any such ground, even if there had been no affidavit whatever. Our Practice Act provides that where a defendant has not been personally served with the summons and a copy of the complaint, he may at any time within six months after judgment come in and answer to the merits of the action. This is a positive right which he cannot be deprived of, and which in this case the defendant should have pursued if he had any merits to be propounded. Where a remedy is so perfectly attainable in the Court of original jurisdiction, an appellate Court will not administer it for any cause that can be assigned.
Upon the next ground of error, the position of the appellant is correct. Our statute forbids a mortgagee from recovering the mortgaged estate, and confines his remedy to a foreclosure. The same reason does not therefore exist, as by the English rule, for appointing a receiver to collect the rents and profits pending the litigation. The mortgage is considered as only the security for the debt; the estate remains that of the mortgagor in the character of owner, and must continue to remain so, with all the incidents of ownership, until, by a foreclosure and sale, a new owner is substituted.
The order appointing a receiver is reversed, and the judgment affirmed at the respondent’s costs.