Thompson v. Alford (1901) · DecisionDepot

Thompson v. Alford

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 11, 1901 No. S.F. No. 1862.Published

Before: Harrison

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Holding. The court held that the superior court erred in denying the plaintiff's motion to set aside the respondent's default, as the respondent had become a party of record and the plaintiff was entitled to have the claim against her adjudicated on the merits.

Issues

Whether the superior court's order substituting the respondent as a party defendant is reviewable on appeal.
Whether the plaintiff is entitled to have the respondent's default set aside to allow for an adjudication of the claim.

Disposition. reversed

Quotations verified verbatim against the opinion

“The respondent having been made a party defendant in the action, the plaintiff has the right to have his claim against her adjudicated.”

Synopsis

The facts are stated in the opinion of the court.

HARRISON, J.

The appellant commenced this action, February 18,1897, for the foreclosure of a mortgage executed by B. T. Alford, making Jane Doe one of the parties defendant therein. A summons issued in the action was returned, March 26, 1897, with an affidavit of W. T. Porter attached thereto, stating that on March 15, 1897, he had personally served the same “ on Dollie E. Alford, wife of B. T. Alford, (sued herein as Jane Doe,) one of the defendants herein,” by delivering to her the same, together with a copy of the complaint. On the same day that the summons was returned, the court made an order that Dollie E. Alford be substituted as a defendant in place of Jane Doe, and at the same time entered her default for failure to answer the complaint. April 6, 1897, a judgment of the court for the foreclosure and sale of the mortgaged premises was entered of record. July 3, 1897, a motion was made in behalf of the respondent to vacate the judgment so far as it affected her rights, and was based upon an affidavit by her, setting forth that she was not named in the complaint as a party defendant, and that when the summons and complaint were handed to her she supposed that the papers were intended for her husband, as he was named therein as one of the parties defendant, and, accordingly, she laid them aside to be given to him on his return, and also stated that she had an interest in the mortgaged premises, and had a good and meritorious defense to the action. After hearing the motion, the court, August’ 9, 1897, made an order vacating the judgment

“

so far as it affects the rights of Mrs. Dellie E. Alford,

[54]

wife of B. T. Alford.” An appeal from this order was dismissed by this court, March 9,1898. April 25,1898, the plaintiff moved the superior court to vacate the default entered against the respondent, and to fix a time within which she could plead to the complaint. This motion was denied by the court, May 21, 1898, from which order the present appeal is taken. A motion to dismiss this appeal, upon the ground that the order is not appealable, was heretofore denied.

(Thompson

Alford,

Thompson v. Alford

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Synopsis

HARRISON, J.

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