101 Cal. 246 | Cal. | 1894
This action was brought to foreclose a mortgage executed by plaintiff to defendant Gleason upon certain land in California. The defendant, Charles Ingles, and a number of other persons were made parties defendant upon the general averment that they claim to have some interest in the mortgaged premises, which interest is averred to be subsequent and subject to the lien of said mortgage. Judgment by default was rendered against all of the defendants, and a decree of foreclosure entered in favor of plaintiff. Defendant Ingles appeals from the judgment. He also appeals from an order denying his motion to set aside his default and to be allowed to answer.
The appeal from the judgment is based entirely upon the judgment-roll, no facts aliunde the record being shown. Practically, therefore, appellant is in the same position as one attacking a judgment collaterally; that is, he contends that the judgment-roll does not show jurisdiction.
In .the leading case of Pennoyer v. Neff, 95 U. S. 714, the supreme court of the United States holds that wdiile the courts of a state cannot acquire jurisdiction to render a judgment in personam against a nonresident without personal service óf process within the state, still they may, without such service, subject property of the nonresident found within the state to the satisfaction of claims of her citizens, and may enforce liens thereon in a direct proceeding instituted for that purpose, as by attachment, or by an action to enforce the lien of a mortgage. In such a case the procedure is against the property and is in its nature in rem. In a proceeding strictly in rem personal service is not necessary, but a state may require that, in such a proceeding, notice or warning must be given in a prescribed method to persons claiming interests in the property; and in such event the method must be followed. In this state the statute provides that in such a case summons may be served on a nonresident by publication in pursuance
With respect to the appeal from the order refusing to grant the motion to set aside the default and allow appellant to answer, it would be sufficient to say that the bill of exceptions on the subject merely shows that such a motion was made and denied. There are some affidavits and other documentary matter printed in the latter part of the transcript; but they are not in the bill of exceptions, nor are they in any way identified or made part of the record. If, however, they could be considered, they show no reason for holding that the court abused its discretion in denying the motion.
The judgment and order appealed from are affirmed.
De Haven, J., and Fitzgeeald, J., concurred.