Lewis v. Rigney

21 Cal. 268

• Court: California Supreme Court
• Decided: July 1, 1862
• Status: Published

Opinions

Norton, J. delivered the opinion of the Court Court

Field, C. J. and Cope, J. concurring.

This is an action of ejectment, in which the summons was served on the defendant Quigley, but not on the defendant Rigney—Quigley having suffered a default, judgment was entered against both defendants. Rigney then moved the Court to set aside the judgment, which motion was granted. The plaintiff appeals, and insists that Rigney could only ask to have the judgment set aside as to him. Although it may be that Rigney might have the judgment set aside as to him, yet we think he may have the only judgment in the case set aside if it has been taken against him without authority. There is no judgment against him alone; it is one judgment against the two defendants for the recovery of the premises and for damages, and to set aside the judgment as to him would in effect be setting aside the whole of that judgment and entering a new judgment against Quigley alone. As it now stands, the plaintiff has only to enter a new judgment against the defendant who has made default. Whichever the form the result is the same.

The parties seem to consider that the leave given Rigney to answer the complaint authorizes him to defend for both defendants. This is not so. The default of Quigley has not been set aside, and if Rigney wishes to defend for Quigley as landlord, he must make an application for such leave. We do not intend to signify any opinion as to his rights in this respect, but only to remove the erroneous impression which appears to have occasioned this appeal.

Judgment affirmed.