McGinn v. Rees
Before: THE COURT. —
Synopsis
Summons—Service of Copy of Complaint—Jurisdiction.—Under the provisions of section 410 of the Code of Civil Procedure, the service of a copy of the complaint with the summons is essential to give the court jurisdiction.
Id.—Variance Between Complaint and Copy Served—Minor Differences— Default Judgment — Jurisdiction—Vacation of Judgment Unwarranted.—The setting aside of a default judgment for want of jurisdiction on the ground that the defendant was not served with a copy of the complaint on file in the action, as required by section 410 of the Code of Civil Procedure, is unwarranted, where there existed only minor differences between the complaint on file and the copy served, the most important of which was the omission from the copy of one of the names of the defendants contained in the filed complaint, and the summons served contained the omitted name.
Id.—Remedy of Defendant.—Under such circumstances, if the defendant desired to test the sufficiency of the service, she should have appeared and by an appropriate motion raised the question, instead of waiting until judgment was taken against her and then claiming it was a nullity because of such differences.
Id.—Setting Aside Service of Summons—Prejudice of Substantial Bights.—A motion to set aside the service of a summons will be denied unless it is shown that the substantial rights of the defendant are affected.
Id.—Amendment of Return of Summons — Service on Defendant Sued Under Fictitious Name — Judgment.—Where a complaint names fictitious defendants, and process is served upon a person not named in either the complaint or summons, and default judgment is entered against the person so served, without amendment, it is the duty of the court to permit the plaintiff thereafter upon motion to amend the return of proof of service of summons so as to make it show that the person served was the person sued under the fictitious name.
Id.—Defendant Sued Under Fictitious Name—Judgment—Failure to Substitute True Name—Irregularity—Appeal.—Where a defendant is sued under a fictitious name and served with process, the failure to amend the complaint so as to state his true name, is but an irregularity for which the judgment against him may be reversed on appeal.
Id.—Foreclosure oe Lien—Personal Judgment—Support by Prayer oe Complaint.—In an action for the foreclosure of a mechanic’s lien, the fact that the body of the complaint sought no personal judgment against the defendant is not fatal to such a judgment, where the prayer of the complaint demanded a judgment of this nature.
Id.—Motion to Amend Return oe Summons—Grounds not Stated— Failure to Object—Appeal.—Where a motion to amend the return of summons fails to state the grounds upon which the motion was based, and no objection to the hearing of the motion is made on that ground, the objection cannot be made for the first time on appeal.
THE COURT.
This is an action to foreclose a lien for street work. According to the caption of the complaint the action is against Helen Rees, John Doe Rees (her husband) and four fictitious defendants. Helen Rees, it is alleged in the complaint, is the owner of the property upon which the lien is claimed, and she alone entered into the contract with plaintiff for the performance of the street work. John Doe Rees is not alleged to be a fictitious defendant, but he and the four fictitious defendants, it is averred, claim some right or interest in the property, but which is subordinate to plaintiff’s claim. In the prayer of the complaint judgment is demanded against the defendants for $377.75 with interest and costs, and for a foreclosure of plaintiff’s lien. Summons was served on Helen Rees and Mark Rees, and a judgment by default for the amount demanded was entered against said defendants and the requested decree granted. Within about .three months after the entry of the judgment each of the
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above-named defendants, specially appearing for that purpose, moved the court to set aside the judgment. Such motion was made, not under the provisions of section 473 of the Code of Civil Procedure, but upon the ground that the court was wholly without jurisdiction to enter the same. The plaintiff also upon due notice requested permission to amend the proof of service of summons on Mark Rees. The court refused to grant the motion to set aside the judgment against Helen Rees, and refused to permit the plaintiff to amend the return of summons, but granted the motion to vacate the judgment as to Mark Rees.
The plaintiff and defendants respectively prosecute appeals from these orders. These appeals are all embraced in one record, and will be considered together.
Several of the points made in their briefs by Helen and Mark Rees could be considered only upon an appeal from the judgment or upon a motion made under the terms of section 473 of the Code of Civil Procedure, and not upon the motions giving rise to these appeals, which simply test the question of the jurisdiction of the court.
The ground upon which Helen Rees relies for a reversal of the order denying her motion to vacate the judgment against her is that in effect she was not served with a copy of the complaint on file in the action as required by section 410 of the Code of Civil Procedure.
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