58 P. 318 | Cal. | 1899
Action to foreclose a mortgage. Defendants Lewis Jacobs and Lewis Meyerstein, partners as Bank of San Bernardino, appeared and filed a cross-complaint against all the other defendants in the action, whereby they sought to foreclose a mortgage against defendants Tibbets and wife. Appellant William T. Curtis was named as a party defendant in the cross-complaint. The only service of the complaint upon Curtis, as shown by the record, was proved by affidavit, in which it is stated that affiant "personally served the same on W.F. Curtis, one of the defendants named in said action." There is but one defendant of the name of Curtis. Default was entered against W.F. Curtis, The judgment recites as follows: "William T. Curtis having been regularly served with process and time for answering having expired, and they [referring to all defaulting defendants] not having answered, but made default, and the findings and decision of the court having been made and filed, now, therefore, the judgment of the court is," et cetera. The cross-complaint is against the plaintiffs and against William T. Curtis, among other defendants, but there is no evidence of its service upon Curtis and no recital in the findings or judgment that it was served upon him. The judgment forecloses the mortgage of plaintiffs and the mortgage set out by the cross-complainants and directs the sale of all the mortgaged property. Defendant Curtis appeals from the judgment. There is no evidence in the record that W.F. Curtis and William T. Curtis are the same person, except as it may be inferred from the foregoing. Appellant claims that the person sued and the person served are not the same person, for, primafacie, two different names designate two different persons. In support of the claim McNally v. Mott,
2. Appellant complains that the judgment granting the relief asked in the cross-complaint was unauthorized and erroneous as to him, because it was not served upon him. There is no recital in the judgment and no evidence in the record that it was served.
The cross-complainants ask that all the defendants and all persons claiming under them "be barred and foreclosed of all rights, claim, or equity of redemption in said premises," et cetera. Appellant was entitled to service of the cross-complaint and to answer or demur thereto. Section 442 of the Code of Civil Procedure provides that "the cross-complaint must be served upon the parties affected thereby." (Hibernia *61 Sav. etc. Soc. v. Fella,
It is advised that the judgment, so far as it affects the defendant Curtis, be reversed.
Haynes, C., and Britt, C., concurred.
For the reasons given in the foregoing opinion the judgment, so far as it affects the defendant Curtis, is reversed.
Temple, J., McFarland, J., Henshaw, J.,
Hearing in Bank denied.