People v. Mulcahy

MELVIN, J.

Appeal from an order setting aside a default judgment. In August, 1899, the district attorney of Placer County filed a complaint to foreclose the interest of Patrick Mulcahy in certain school lands and to cancel his certificate of purchase. The summons was served by publication and upon default of the defendant a decree of foreclosure was made and entered on December 4, 1899. On June 14, 1909, James T. and Theodore E. Hill as grantees by mesne eon

[35]

veyances from said Patrick Mulcahy gave notice of motion to vacate the judgment and after due hearing the motion was granted July 14, 1909. The material part of the court’s finding was as follows

“That said judgment in said action is null and void on its face, and that the court never acquired jurisdiction over the person of defendant. That no service of summons, either actual or constructive, was ever made upon the defendant.”

Appellant contends that the judgment is not void upon its face and that therefore the court had no power to consider the affidavit of James T. Hill (one of the petitioners), the relief not having been demanded within the time limited by section 473 of the Code of Civil Procedure. (Citing

People

v.

Davis,

143 Cal. 675, [77 Pac. 651].) There can be no doubt of the correctness of the rule announced in the above-cited case, and it, therefore, becomes our duty to scan the judgment-roll and to see whether or not invalidity of the judgment is apparent from an inspection thereof.

This case differs from

People

v.

Davis,

143 Cal. 675, [77 Pac. 651], in the fact that subdivision 1 of section 670 of the Code of Civil Procedure is applicable here as it has stood since the amendment of 1895 and we are permitted to consider the affidavit for the publication of summons and the order directing publication.