This is an action .to foreclose the of defendants, obtained by virtue of a certificate of purchase for the north half of section 28, township 9 north, range 32 west, San Bernardino meridian, сounty of Santa Barbara.
Judgment was rendered in favor of plaintiff. The appeal is from an order made August 17, 1886, refusing to set aside the judgment.
It proceeds to aver that the defendant (without naming him) located the north half of section 28, township 9 north, range 32 west, San Bernardino meridian, county of Santa Barbara, on the fifteenth day of October, 1868; that on the sixteenth day of November,1868, the said defendant purchased said lands, and received a certificate of purchase therеfor, known and numbered as- certificate No. 1191.
The complaint further shows that on the first day of January, 1872, there was due plaintiff, as interest on said certificate of purchase, the sum of ninety six dоllars, and avers a publication of the delinquent list with notice, etc., as provided by statute.
There is no averment of ownership of this certificate except as above stated, and no allegation that the owner is unknown.
A summons issued to “ W. E. Greene et al., defendants,” dated September 27, 1872, which recited that this action was brought to obtain a decree foreclosing the intеrest of defendants “ in certificate of purchase No. 1291.”
The summons was returned on the same day (September 27, 1872) by the sheriff, who certified that “ the same has not been served on the defendаnts, for the reason that the defendants named in said summons do not reside in this county, and their place of residence is not known to me.”
On the same day an alias summons issued, which is a copy of the former summons except that instead of being entitled People etc. v. W. E. Greene et al., defendants, it is entitled People etc. v. “ W. E. Greene and all unknown owners,” and with the further difference that it recites that the action is brought to obtain a decree foreclosing thе interest of defendants in certificates Nos. 1290, 1291, 1395, and 1396, etc.
The record fails to show any affidavit for publication .of summons, or order of the judge or court directing such ¡рublication.
There is an affidavit of E. B. Bqust as follows:—
“State of California, County of Santa Barbara, ss.
“E. B. Boust, being duly sworn, says he is publisher of the Santa Barbara Times, a newspaper published weekly in the town and county of Santa Barbara, state of California; that a summons, a true сopy of which was duly published in said newspaper for four consecutive weeks, to wit, from the second day of October, A. D. 1872, to the second day of November, A. D. 1872.
“E. B. Boust.”
“Subscribed and sworn to before me this thirteenth <day of November, A. D. 1872.
(Seal) “ A. S. Cooper, Notary Public. '
“Filed November 16, A. D. 1872.
“ F. A. Thompson, Clerk.
“By F. N. Guiterrez, Deputy.”
To this affidavit a printed copy of the alias summons is attached, but the affidаvit does not, as may be seen, make any reference thereto.
Judgment by default was taken against defendants November 21, 1872, that is' to say, in less than "forty days after service of summons, if due service thereof is shown.
In June, 1883, F. A. Hyde moved on petition, showing him to be the owner of certificate No, 1291 by assignment, to have the judgment set aside and for lf&ve to answer. His motion was granted August 18, 1883, and
On the twenty-second day of, September, 1883, the court annulled the order of August 18, 1883, setting aside the judgment. This order, so far as appears, was without notice to Hyde оr his attorney, and no action was taken in reference to the answer on file.
Defendant Hyde again, in August, 1886, upon petition duly verified (and setting out most of the. facts herein stated) showing that in 1872 he was a resident of the county of Alameda, etc., moved to set aside the judgment, and the motion being denied, brings this appeal.
1. It is apparent from the foregoing statement that the judgment is void fоr want of jurisdiction by the court of the person of defendants or of any of them. (People v. Mullan,
2. A motion to set aside a judgment is a direct and not a collateral attack on such judgment; hence errоrs, which might be the subject of review on appeal therefrom, may be considered. (People v. Mullan, supra.)
3. The important question, however, is this: Can the superior court, after the lapse of .a period of, say, twelve years from the entry of a judgment, set it aside, even if void?
In Bell v. Thompson,
The case referred to in the Practice Act is provided for by section 473 of the Code of Civil Procedure.
Under the former system of practice in this state, the
In Hastings v. Cunningham,
So, tоo, it has been held that a judgment may be amended after the expiration of the term, where the record furnished the data for such amendment. (Hegeler v. Henckell,
In Savings and Loan Soc. v. Thorne,
In Wharton v. Harlan,
A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its want of vitality, is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant.
It is said a court whosе process is abused by an attempt to enforce a void judgment will interfere, for its own dignity, and for the protection of its officers, to arrest further action. (Mills v. Dickson,
The most effectual method of doing this is by extirpating the judgment itself,— by removing a form which is without substance.
In New York, with a statute similar to section 473 of our code, the courts have held that the power to vacate a judgment is inherеnt, and is not limited by their code, which only has reference to ordinary defaults (Dinsmore v. Adams,
In this last case, McKinstry, J., in commenting upon the rule enunciated in Bell v. Thompson, supra, said: —
“ This technical rule as to action during the same term never applied to a pretended judgment in fact void, and could never have applied to statutory judgments entered by the clerk, which may be entered in vacation.”
Section 473, Code of Civil Procedure, is intended to apply to cases where judgment has been taken against a party by mistake, accident, surprise, or excusable neglect; to cases in which the moving party must move upon evidence de hors the record; to casеs in which the relief to be granted is largely in the sound discretion of the court, and has no application to a pretended judgment which is shown by the judgment roll to be void
In this instance, it is true, the applicant moved upon a petition duly verified, setting out the facts, but the notice of motion specified that it would be based “ upon the ground that the papers on file in said action failed to show that any affidavit was filed therein stating grounds for the making of an order by said court for the publication of the summons in said action, or that any order by said court for the publication of said summons was ever made as required by law,” and it was further stated that the “ motion would he made on the pаpers on file,” etc.
The judgment roll is set out in the transcript, and the certificate of the judge as well as the stipulation of the attorneys show that it was used at the hearing.
By this roll it appears, as before stated, that there was no personal service on the defendants, or any of them, and as there is no sufficient affidavit that the summons was ever in fact published, the judgment is void, and should have' been set aside, and a trial had upon the complaint and answer of Hyde on file, which answer was never stricken out or disposed of.
The order appealed from is reversed, and the court below directed to set aside the judgment in the cause rendered November 27, 1872.
McFarland, J., Sharpstein, J., Temple, J., McKinstry, J., and Paterson, J., concurred.