Merner Lumber Co. v. Silvey

STURTEVANT, J.

From an order dismissing an action brought to foreclose a mechanic’s lien the plaintiff has appealed.

An understanding of the points presented by the record involves the following facts: The complaint was filed and the summons was issued on February 27, 1932. The summons was not served but, on March 15, 1932, the attorneys for the parties executed a stipulation as follows: “It is hereby stipulated, by and between Frederick Schneider, attorney for Merner Lumber Company, and Frank Lee Crist, attorney for

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J. L. Silvey, et ux., and A. 6. Heald, that defendants J. L. Silvey, et ux., and A. C. Heald may have to and including the 20th day of March, 1933, in which to answer the complaint in the above-entitled matter. Dated March 15, 1932. ’ ’ That stipulation was filed March 17, 1932. No answer was ever filed. On March 19, 1935, the defaults of all defendants were entered. On March 22, 1935, the judgment was filed. It recites, among other things: “and it appearing that summons was issued in this cause on February 27, 1932, but that said summons has never been served on any of said defendants and the Court having so found, and it appearing that said A. C. Heald is sued herein as John Doe, and it appearing that defendants John Lewis Silvey, Pauline Silvey, and A. C. Heald appeared in this action by the filing on March 15, 1932, of a stipulation signed by the respective attorneys for plaintiff and said defendants extending time for said defendants to answer in said cause until March 20, 1933, and it appearing that no further extension of time to plead has been granted said defendants or is on file and that no answer, motion, or other pleadings by any of said defendants is on file, and the default of each of said defendants, John Lewis Silvey, Pauline Silvey, and A. C. Heald having heretofore been entered by the Clerk according to law”. On August 15, 1935, the defendants served and filed a “Notice of Motion for Dismissal of Action”. It contained a statement that said motion “will be made upon the ground that said defendants have not, nor have either of them ever been served with summons in said action and have never made an appearance therein and no jurisdiction over them, or either of them has ever been acquired by said court in said action and that the court had no jurisdiction to render or enter the judgment in said action and the said judgment is void and the judgment roll in said action shows said judgment to be void on its face, and that more than three years has expired since the commencement of said action and the issuance of the summons therein”. It was supported by the affidavits of John Lewis Silvey and Pauline Silvey, two of the defendants. It was opposed by two affidavits of Frank Lee Crist, the attorney for the plaintiff. That motion was denied on October 28, 1936. Three days later, October 31, 1936, the defendants served and filed a second notice of motion. It was a motion to set aside the judgment and for