Hibernia Savings & Loan Society v. Cochran

ANGELLOTTI, J.

This is an appeal by one Frank C. Clark from an order denying Ms motion to vacate the judgment entered in favor of plaintiff in the above-entitled action, to set aside the default and appearance of defendant Cochran, and to dismiss the action.

[655]

The action was instituted by plaintiff on November 19, 1898, to foreclose the lien of two mortgages executed to it by defendant Cochran, against Cochran and defendant Metzger, a junior mortgagee. Notice of

Ms pendens

was regularly recorded on the same day. „ Cochran had on September 1, 1898, conveyed the property covered by the mortgages to one Sehnaittacher, but the deed to him was not placed of record until June 14, 1900, and, so far as appears, the fact of such conveyance was unknown to plaintiff. On June 14, 1900, Sehnaittacher conveyed the property to appellant, who placed his deed of record on the same day. Neither Sehnaittacher nor appellant was ever made a party to the action or applied to be made such.

Summons was duly issued in the action, and on November 22, 1898, returned unserved on Cochran. No

alias

summons was issued, but on July 23, 1900, Cochran voluntarily filed his written appearance.

Thereupon, on August 29, 1900, appellant appeared specially, for the purpose of moving to set aside such appearance of Cochran and for a dismissal of the action, which motion was on November 30, 1900, denied.

On January 17, 1901, the default of Cochran was regularly entered, and upon his default and the answer and cross-complaint of defendant Metzger judgment of foreclosure was entered February 2, 1901, as prayed for in the complaint and cross-complaint.

On March 12, 1901, appellant gave notice of the motion, from the order denying which this appeal is taken.

The grounds upon which this motion would be made, as well as the motion made prior to judgment, as specified in the respective notices, were substantially that Cochran was never served with summons, that he did not appear in the action until after he had parted with all his interest therein, and that such appearance was made at a time when he could not have been served with a valid summons under the provisions of sections 408 and 581 of the Code of Civil Procedure, or at all, the claim in this connection being that he could not under such circumstances by a voluntary appearance give the court jurisdiction to enforce the lien of the mortgages against property in which he no longer had any interest.