King v. Blood, No. 2,110

No. 2,110 | Cal. | Jul 1, 1871

Lead Opinion

By the Court, Sprague, J.:

This action was commenced in the Fourth District Court, City and County of San Francisco, by filing a complaint and causing summons to be issued thereon on the 15th day of November, 1867, to recover the amount of a former judgment against defendants.

The summons states that “ the said action is brought to recover judgment against the defendants for the sum of five thousand three hundred and seventy-one dollars and twelve cents, and interest at three per cent per month from November 14th, 1863; and the further sum of eleven dollars and twenty cents, and the costs of this action;” and further notified defendants that if they failed to appear and answer the said complaint within the time specified in the summons, plaintiff would take judgment against them by default for the said sum of five thousand three hundred and seventy-one dollars and twelve cents, and interest from November 14th, 1863, at three per cent per month, and for the further sum of eleven dollars and twenty cents, and the costs of this action.

The summons, together with a certified copy of the complaint, was duly served upon defendant Blood, in the City and County of San Francisco, on the 23d day of May, 1868; and the summons was duly served on defendant Hartman, in the same city and county, on the 1st day of June, 1868. The defendants having failed to appear, answer, or demur, judgment by default was entered against them by the Clerk of said Court, on the 25th day of June, 1868. From this judgment defendants appeal to this Court, having filed their notice of appeal June 1st, 1869; and now insist that the judgment is erroneous and must be reversed, because the summons, as appears from the record, does” not state “ the cause and general nature of the action,” as required by the twenty-fourth section of the Practice Act. And it is further contended that the complaint fails to state a good cause of action upon a judgment, because it does not allege that an execution had been issued upon the judgment and an effort made to collect the same, without success.

The last point is untenable. There is no more necessity for alleging an unsuccessful effort by execution to collect the judgment, upon action brought thereon, than there is for alleging an unsuccessful demand upon defendant for the payment of an overdue promissory note made by him.

Upon the first point I think the statement in the summons a substantial compliance with section twenty-four of the Practice Act. Again, a certified copy of the complaint was served with the summons personally upon one of the defendants, and as both of defendants were served with the summons in that county, they are, therefore, presumed to have been residents of said city and county, and service of such copy is deemed to have been made upon both. (Calderwood v. Brooks, 28 Cal. 153.)

By the summons and copy of complaint thus served the defendants were fully and particularly notified of the cause, general nature and object of the action, the relief sought, the time within which they were, required to appear and answer, and the consequence of a failure to appear.

The error or defect claimed to exist in the summons is more technical than real, and I am unable to discover that any substantial right of defendants could be affected thereby, or that the judgment should be reversed on account thereof. (Prac. Act, Secs. 71 and 188; Page v. O’Neil, 12 Cal. 493; English v. Johnson, 17 id. 107.)

Judgment affirmed.

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Concurrence Opinion

Temple, J., concurring specially:

I concur in the judgment.

Mr. Justice Crockett, being disqualified, took no part in the decision.