Jordan v. Giblin

12 Cal. 100 | Cal. | 1859

Terry, C. J.,

delivered the opinion of the Court—Baldwin, J., concurring.

This was an action to enjoin the sale of certain real estate in San Francisco. This sale was attempted to be made under two executions issuing from judgments rendered in the late Superior Court of San Francisco, at the suit of appellants against Michael Jordan. The property is claimed by respondents.

Two principal questions are made by the record. First. That the title of appellants is superior in law and equity to that of Jordan, the defendant in these executions. Second.. That the appellants had no right to subject the property to sale, for the reason that the judgments are void for want of jurisdiction in the Court rendering them.

It is conceded, that if these judgments are out of the way, the title of the respondents is good, and that they have a right to intervene in this form to protect it. We are inclined to think that the Court below was right in holding in favor of respondents on the first proposition ; but it is unnecessary, in our view, to pass definitely upon this point, inasmuch as we think the decree below should be affirmed on the second ground above stated.

The ground of the want of jurisdiction of the Superior Court is, that there was no personal or other sufficient service of notice of the actions in the cases of Giblin v. Jordan, and Abrams v. Jordan, in which cases these executions issued.

The facts connected with this point are these : At the time of the institution of this suit, and for several days afterwards, the defendant Jordan was a resident of San Francisco; at the time of the affidavit for an order of service by publication, in the case of Giblin v. Jordan, he was beyond the limits of the State, and has not since returned. The statute requires that in cases where the party to be served is out of the State, publication must be made at least three months. Prac. Act, sec. 31.

In the case of Abrams, the affidavit does not show a state of facts authorizing the appointment of attorney. The record does not show that any summons had been issued and placed in the hands of the proper officer, or that any effort had been made to find the defendant in order that he might be personally served. We have already held, in proceedings of this character, where service is attempted in modes different from the course of common law, that the statute must be strictly pursued to give jurisdiction. A contrary course, would encourage fraud and lead to oppression.

Judgment affirmed.