Hibernia Savings & Loan Society v. Clarke
Before: Belcher
Synopsis
Summons—Service by Person Other than Sheriff—Constitutional Law.—Section 410 of the Code of Civil Procedure, which authorizes service of summons by a person other than the sheriff, is not in conflict with the general law in regard to the service of process and notices by the sheriff, and is not in violation of section 25 of article IV of the constitution.
Id.—;Duty of Sheriff.—The code provision defining the duties of a sheriff does not give to or impose upon him exclusively the duty of serving all process and notices, but merely requires of him to serve all notices and process directed to him or placed in his hands for service.
Id.—Repeal of Code—County Government Act—Re-enactment.—Section 410 of the Code of Civil Procedure was not repealed by the County Government Act, but was amended and re-enacted in 1893.
Id.—Filing of Affidavit of Service.—Where a summons is returned to the office of the clerk with an affidavit of its service attached or annexed •thereto, the filing of the summons is sufficient, Id.—Default—Waiver of Findings.—Defendants who make default and fail to appear at the trial waive findings.
Id.—Sufficiency of Findings — Recitals in Decree.—Recitals in the decree may constitute sufficient findings where findings are required.
Foreclosure of Mortgage—Cross-complaint—Service upon Defaulting Defendants.—In an action to foreclose a mortgage, where the mortgagor and his wife, who is alleged to have or claim some interest in the mortgaged property, made default, cross-complaints by subsequent lienholders must be served upon the defaulting defendants, and, without such service, the court has no power or authority to grant to the cross-complainants any affirmative relief.
Id.—Obligations of Husband—Erroneous Judgment against Wife.— Where the note and mortgage which were the basis of the action were executed only by a husband, and a judgment lien pleaded by a cross-complainant was against the husband only, it is error for the court to adjudge that the plaintiff and the cross-complainant respectively recover from both husband and wife the amount of their respective claims.
Belcher, C. The plaintiff brought this action to foreclose a mortgage executed by the defendant Alfred Clarke to secure payment of his promissory note for $10,200, dated January 11, 1889, and payable to plaintiff, or order, one year after date, with interest.
Johanna F. Clarke and several other persons were made parties defendant, upon the ground that they had or claimed interests in, or liens upon, the mortgaged premises, which interests or liens were alleged to be subsequent and subject to the lien of said mortgage. The defendants Alfred Clarke and Johanna F. Clarke did not appear, and their defaults were entered.
The defendant Samuel G. Murphy answered and filed a cross-complaint, setting up that he held a deed of a part of the said mortgaged premises, and of other land? which was executed to him in June, 1891, by the defendants Clarke, and which was absolute in form, but was intended as a mortgage to secure payment of two promissory notes, made by defendant Alfred Clarke, for $3,000 each, with interest, and praying that the said [29]deed be adjudged to be a mortgage to secure payment of said notes, etc.
The defendant the Gray Brothers Artificial Stone Paving Company answered, setting up that it had recovered a judgment in the superior court, in and for the city and county of San Francisco, against the defendant Alfred Clarke, for the sum of $986, and $93.30 costs of suit, which judgment was still in full force and effect, and was a lien on the mortgaged premises superior to the plaintiff’s mortgage and the claim of defendant Murphy.
The defendant E. J. Wilson answered, setting up that he held a grant, bargain, and sale deed of a part of the said mortgaged premises, and of other lands, which was executed to him in September, 1891, by defendant Alfred Clarke, in trust to secure payment of a promissory note for $12,000 and interest, made by said Clarke, on which there was still due and unpaid the sum of $10,450, with a prayer for proper relief.
The cause came on regularly for trial on August 29, 1894, upon the pleadings of the respective parties, and a decree .of foreclosure was entered on November 17, 1894.
The decree recites that “ findings having been duly waived herein, and the court having heard the proofs of the respective parties and the evidence produced in support thereof, and having considered the same, and it appearing to the satisfaction of the court”: 1. That the defendants Alfred Clarke and Johanna F. Clarke were duly served with summons, together with a copy of the complaint, and that the defaults of said defendants for not appearing and answering were duly entered on August 11, 1894; 2. That the separate answer and cross-complaint of the defendant Samuel G. Murphy was duly and personally served upon the defendants Alfred Clarke and Johanna F. Clarke; 3. That there is due and owing to the plaintiff from the defendants Alfred Clarke and Johanna F. Clarke, upon the note and mortgage mentioned and set forth in the complaint, the
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)