Hibernia Savings & Loan Society v. Churchill

McFARLAND, J.

Action upon notes and mortgage executed to plaintiff by William H. Churchill in his lifetime. Judgment went for plaintiff. There are two appeals from the judgment—one by defendant Mary F. Churchill, administratrix, and the other by Robert P. Churchill, as intervenor. It is not contended by either appellant that the mortgage was not a perfectly valid one for the amount of money which it purports to secure; but it is contended that, for certain legal reasons, technical in their nature, respondent should be precluded from enforcing its lien for the recovery of its loan.

1. The contention of appellant Mary F. Churchill is that the judgment is void because no summons was issued thereon within one year after the commencement of the action. The facts as to this contention are these: The action was commenced on March 5, 1898, and summons was issued on that day; it was served on the appellant Mary F. Churchill on February 15, 1899, and, as she made no response to the summons, her default was duly entered on March 10, 1899; but, when the clerk issued the summons on March 5, 1898, he inadvertently dated it “February” 5th, instead of “March” 5th. Afterward, appellant made a motion to vacate the default and dismiss the action, oh

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the ground that no summons had been issued and that more than a year had elapsed since the commencement of the action; and on the hearing of this motion the above facts appeared, and the court found them in the decree. The motion was properly denied. The whole contention of appellant rests on the proposition that the date of the summons on its face is conclusive proof that it was issued before the commencement of the action, and for that reason was void; and this proposition cannot be maintained. It was clearly shown that, as a fact, the summons was not issued before the commencement of the action, but that it was issued and served within a year thereafter. The summons was not void on account of its date; for a date is no part of the form of a summons prescribed by the code. (Code Civ. Proc., sec.

407.)

The summons in the case at bar fully conformed to the requirements of the code. The appellant did not ask to be allowed to answer to the merits, or to answer at all. The judgment, as to this appellant, must be affirmed.

2.