Bowen v. May

Appeal from the Fourteenth District, County of Sierra.

This was a bill for the foreclosure of a mortgage.

The action was brought upon notes and a mortgage executed by both of the defendants. The mortgage is in the usual form of a joint mortgage; and, to secure the payment of three several promissory notes given for the purchase money of a mining claim, grants, bargains and sells to the plaintiff the said premises.

Personal service was had upon defendant Elliott, and upon failure to answer judgment was rendered by the Court on the application of plaintiff, ordering a sale of the mortgaged property for the payment of the debt and execution against the joint property of defendants, and the separate property of defendants served with process.

A motion was made in the Court below to set aside the judgment on the ground that no service of process was had on either defendant.

The Court overruled the motion, and this appeal is taken by defendants from the order overruling said motion, and from the final judgment. The return on the summons is in the following language :

“ Thomas Aldrich, being duly sworn, says: that he is a white male citizen of the United States, and over twenty-one years old; that upon the twenty-third of June, A. D. 1858, at Alleghanytown, in the County of Sierra, he served a certified copy of the summons hereto attached, and a certified copy of the complaint attached to said summons, issued in the above entitled cause, upon the defendant Ed. E. Elliott, by delivering the same to him personally at said place.

“Thomas Aldrich.

“ B. D. S. Martin, Notary Public.”