10 Cal. 441 | Cal. | 1858
Terry, C., J., and Field, J., concurring.
The first assignment of error is, that the note and mortgage are those of the persons signing—McCall and Clary—and not of the corporation. A default confesses all the material facts in the complaint. Unless it were impossible, in fact, therefore, for this note and mortgage, thus executed, to be the note and mortgage of this corporation, the objection fails. We can not see why the corporation, if it chose to do so, could not as well bind itself in this- form as in any other. A party may bind himself, if such is- his design, by a fictitious signature, and if he admits such to be his intention, he can not complain that he is held by it. It is expressly averred that the corporation made this note in this way. It is not impossible that this note was so made in this way by express authority and direction of its by-laws; indeed, it is expressly averred that the president and secretary, signing, were expressly empowered, for and on behalf of the corporation, so to act.
The second assignment is answered by the case of Rollins v. Forbes, (ante, 299.)
The third and fourth assignments are already answered. The complaint states, in so many words, that the note and mortgage were the acts of the corporation, and no further authority is necessary to be averred.
The last assignment questions the regularity of a judgment by default, by a service of the summons upon one McCall, as president, and Clary, as secretary, without some proof beyond the mere return, that these persons were such officers. As to this point, we have had some doubt, but as the statute expressly authorizes a service upon the corporation by serving the summons on their officers, and as the practice has been to take judgment by default upon a return of this sort, we do not feel inclined to hold it erroneous. Upon principle, we can not see that the sheriff is not as much bound to ascertain the fact, as to the persons who fill these offices, as other facts involved in a return quite as difficult of ascertainment; as, for example, the identity of property, whether it be homestead, or otherwise exempt, the ownership, the possession, boundaries, etc., etc.
In the absence of any showing of this kind, we think the judgment should stand.
Judgment affirmed.
