Porter v. Garrissino

By the COURT. The judgment in the action of dwell v. Corbett,.for the recovery of the assessment for the construction of a sewer, did not bind the interest of the plaintiff in the premises in controversy. The statute of April 25, 1863, provides for an action against the owner, but it does not declare that notice to the person in possession shall be notice to the owner out of possession; and if it did so provide, there is nothing in the complaint in that case showing that the defendants therein named were in the possession of the premises. It is obvious that a judgment without notice to the owner, either actual or constructive, will not affect his interest, and consequently that a sale in pursuance of such judgment would not pass his title. It appears that John C. Corbett, one of the defendants in that action, had parted with all his title to the premises before the action of dwell v. Corbett was commenced.

The other defendant in that action, Henrietta Corbett, held an undivided interest in the premises at the commencement of the action. She was sued by the name of H. Corbett. The sheriff returned the summons as served “by delivering to Harriet Corbett, one of the defendants sued as H. Corbett, personally in the county of San Mateo, a copy of said summons,” etc. The judgment was rendered against John C. Corbett and H. Corbett, and in this action the court found that H. Corbett named in said judgment was Henrietta Corbett, but it is not found that Harriet Corbett is Henrietta Corbett, nor that the sheriff served the summons upon Henrietta Corbett. It not appearing that Henrietta Corbett was served with process in that action or that she appeared therein, the judgment did not affect her interest in the premises.

[8]It is unnecessary to express any opinion upon the question as to whether McDermott should have been permitted to intervene in this action.

Judgment and order reversed and cause remanded for a new trial.

Wallace, C. J., did not express an opinion.