Fanning v. Foley

Temple, C. This action was commenced November 1,1879, in the District court of the Twenty-Third Judicial District, to foreclose a street assessment, and the summons was issued on the same day. November 4th it was served upon certain named defendants, none of whom, as is now admitted, had or ever had any interest in the premises upon which it is sought to foreclose the lien.

[338]It is admitted that Joseph D. Gaven was the sole owner of the premises, and continued to be so up to the time of his death, after which his executor sold the land to one Capurro. Gaven was made a defendant, but was not served with summons. It’ is averred in the complaint that he was a minor, and Mrs. Sarah Ann English was served as his guardian. She made no appearance and her default was entered as guardian of Gaven. Of course, this was of no consequence, as it bound neither Mrs. English nor her ward.

The summons was not returned until August 13, 1889, at which time it was filed. September 25, 1891, plaintiff made a copy of this summons without taking it from the files, and handed such copy to Capurro. An affidavit was made on behalf of plaintiff to the effect that the affiant had duly served the summons on Capurro by handing him a copy thereof. This affidavit does not appear to have been filed, but, as is stated, was attached to the summons which had been previously filed — pinned to it, as is stated in the notices — whether with or without the knowledge of the custodian of the record does.not appear, save from the presumption that plaintiff’s counsel would not have done such a thing clandestinely.

Capurro was never made a party to the suit in any way, nor was he served as John Doe, although such a person appears to have been a defendant. Furthermore, the suit was dismissed as to John Doe by plaintiff. Capurro did not appear in the case by any pleading.

January 29, 1891, a decree was entered in the superior court before Hon. F. W. Lawler, judge, foreclosing plaintiff’s lien. The decree does not run against Capurro. On motion of Mrs. Sarah A. English, this decree was set aside and vacated September 21, 1891. Mrs. English then gave notice of a motion to dismiss the action because not prosecuted with reasonable diligence. Capurro also moved to quash the service of summons upon himself, and separately, as successor in interest to Gaven, gave notice of a motion to dismiss the action for want of prosecution. Both motions were granted, and plaintiff appeals from all these orders. It is obvious that all these orders must be affirmed. The decree was absolutely void, and the court was right in removing it from the record. The owner of the fee