Howard v. Galloway

California Supreme Court

Howard v. Galloway

60 Cal. 10, 1882 Cal. LEXIS 393

CourtCalifornia Supreme Court

DecidedJanuary 19, 1882

DocketNo. 8,018

StatusPublished

Cited by5 cases

This text of 60 Cal. 10 (Howard v. Galloway) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howard v. Galloway, 60 Cal. 10, 1882 Cal. LEXIS 393 (Cal. 1882).

Pincite

Opinion

Thornton, J.:

The judgment in this case against Annie B. Galloway, in her own proper person, and against her as executrix of Joseph Galloway, deceased, was by default. She (the only party appealing) makes the point that there is no proof of service of summons on her in either capacity, as above stated, and therefore the judgment was rendered without jurisdiction. On examination of the proof of service, it appears to be clearly defective. The service was not made by the Sheriff, and the affidavit does not state that the person making the service was over eighteen years of age at the time of service, as required by statute. (C. C. P., § 410.) On such proof, the Court below could not render a judgment by default. (Maynard v. McCrellish, 57 Cal. 355.) The defendant had a right, then, to appeal from such a judgment without moving to set aside the default, or other proceedings, in the Court below. (Hallock v. Jaudin, 34 Cal. 172.) We consider Guy v. Ide, 6 Cal. 99, and the cases following it, virtually overruled in Hallock v. Jaudin, above cited, where the question is fully discussed. The defendant had a right to appeal from the judgment, or to move in the Court below. Both remedies are given, and the defendant had a right to avail herself of either, and probably of both.

The judgment is erroneous as to the defendant above named. And as to her in both capacities in which she was sued, the judgment is reversed and the cause remanded.

Myrick and Sharpstein, JJ., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Thornton, J.:

The judgment in this case against Annie B. Galloway, in her own proper person, and against her as executrix of Joseph Galloway, deceased, was by default. She (the only party appealing) makes the point that there is no proof of service of summons on her in either capacity, as above stated, and therefore the judgment was rendered without jurisdiction. On examination of the proof of service, it appears to be clearly defective. The service was not made by the Sheriff, and the affidavit does not state that the person making the service was over eighteen years of age at the time of service, as required by statute. (C. C. P., § 410.) On such proof, the Court below could not render a judgment by default. (Maynard v. McCrellish, 57 Cal. 355.) The defendant had a right, then, to appeal from such a judgment without moving to set aside the default, or other proceedings, in the Court below. (Hallock v. Jaudin, 34 Cal. 172.) We consider Guy v. Ide, 6 Cal. 99, and the cases following it, virtually overruled in Hallock v. Jaudin, above cited, where the question is fully discussed. The defendant had a right to appeal from the judgment, or to move in the Court below. Both remedies are given, and the defendant had a right to avail herself of either, and probably of both.

The judgment is erroneous as to the defendant above named. And as to her in both capacities in which she was sued, the judgment is reversed and the cause remanded.

Myrick and Sharpstein, JJ., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

60 Cal. 10, 1882 Cal. LEXIS 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-galloway-cal-1882.

Opinion

Related

Cite This Page — Counsel Stack