Pearson v. Superior Court

NOURSE, P. J.

This is an original proceeding seeking a writ of mandate requiring the respondent court to dismiss an action entitled

Schultze

v.

Morgan.

The petitioner alleges that he is the surviving solvent partner in the ownership and possession of a certain boat named the “Saxon”; that said partnership was composed of Louis Morgan and himself; that Morgan was duly adjudged bankrupt and that petitioner is in possession of and entitled to the possession of said boat for the purpose of liquidation of the partnership affairs; that on January 5, 1927, summons was issued in the case entitled

Schultze

v.

Morgan,

praying for the foreclosure of a chattel mortgage upon said boat; that said summons was directed to Louis Morgan and Mabel Morgan; his wife, the defendants in said action; that on January 26, 1927, summons and complaint in said action were served in the city and county of San Francisco upon said defendants; that the return of said summons was not made thereto until April 16, 1931; that no appearance was ever made by either of the defendants in said action; that on April 16, 1931, the default of said defendants was entered in said action for their failure to appear therein, and, on the basis of said default, judgment was entered decreeing the foreclosure of the chattel mortgage and ordering the sale of said boat. It was also alleged

[573]

that upon proper notice the petitioner herein applied to the superior court on November 12, 1931, for an order vacating said judgment upon the grounds that it was void for want of jurisdiction of the court to enter it. The respondent has appeared herein by demurrer and answer. The answer denies, for want of information and belief, the pertinent facts alleged in the petition, but at the time of the hearing upon the return of the alternative writ these facts were either stipulated to or proved by documents received in evidence, and we accordingly find that all the facts herein-before stated are true.