Wheeler v. Craig

RICHARDS, J.

This appeal is from an order made and entered by the superior court in and for the county of Los Angeles, vacating the judgment and decree of foreclosure of a mortgage upon real estate in an action wherein the defendant and respondent was served by publication, and wherein her default and the judgment which followed it were based upon the order for and affidavits of publication as these appear in the record before us, and upon the recitals of the decree. The respondent presented no brief either before or after the issuance of an order to show cause, but her former attorney of record, upon the issuance of said order, was given leave as

amicus curiae

to present a brief in support of the validity of the order appealed from. The original complaint herein was filed in said court on December 12, 1924. An amended complaint was filed on 'January 30, 1925. The application and affidavit for publication of summons was presented and filed on February 17, 1925, the application being based upon the showing that the defendant Frances May Craig was concealing herself for the purpose of avoiding service of summons. Both the original and amended complaint being verified, and both showing a good cause of action against said defendant, no affidavit of merits was required, although an affidavit of merits somewhat defective in form, but not fatally so, accompanied said application. The order for publication of summons was made on February 20, 1925. Thereafter several affidavits showing the due publication of the

alias

summons and the mailing of the same, together with a copy of the amended complaint, were presented and filed, and thereupon and on the eleventh day of June, 1925, the said defendant having defaulted, the cause came on for hearing, and upon due proofs of the foregoing facts and also of the averments of the amended complaint the decree of fore- ' closure' was duly made and entered and the property involved in said foreclosure was thereafter sold pursuant to said decree, the plaintiff becoming the purchaser thereof.

[223]

The motion of the defendant and respondent was presented and filed on December 10, 1926, and was made upon the ground that the judgment was void upon its face, and was based solely upon the record in the action. The trial court on January 4, 1927, made and entered its order setting aside the judgment and decree of foreclosure, basing its order solely upon the ground specified in the defendant’s motion and upon the record in the case. This appeal is from said order.