Pellier v. Gillespie

California Supreme Court

Pellier v. Gillespie

8 P. 185, 67 Cal. 582, 1885 Cal. LEXIS 699

CourtCalifornia Supreme Court

DecidedOctober 9, 1885

DocketNo. 7790

StatusPublished

Cited by4 cases

This text of 8 P. 185 (Pellier v. Gillespie) 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

Pellier v. Gillespie, 8 P. 185, 67 Cal. 582, 1885 Cal. LEXIS 699 (Cal. 1885).

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Opinions

Myrick, J.

When this cause was before the court in department, an opinion was filed as follows: —

“ The objection that the affidavit of service of summons is fatally defective, because it does not state that the appellant on whom the summons alone was served, and the defendant on whom a copy of the complaint was served with the summons, were residents of the same county, is overruled, on the authority of Calderwood v. Brooks, 28 Cal. 153. The allegation that appellant covenanted and agreed to pay the mortgage debt and discharge the mortgage lien is sufficient to sustain the judgment. There is a sufficient description of the premises.”

After hearing by the court in Bank, we see no cause for changing the views expressed in department. We will, however, add, as to the sufficiency of the description of the premises, that all reference to lot 2 and map may be omitted, and a description be found. Let the description as found in the mortgage and decree be slightly transposed (lines and distances given as stated), and the description may read thus: “ Beginning at a point on the easterly line of San Pedro Street 27 92-100 feet southerly from a point where the southerly line of the lands of the San Jose Independent Mill and Lumber Company strikes said easterly line of San Pedro Street, and running from said point at right angles with said street to the westerly line of Market Street; thence along the line of lands of Cresta, Reed, and San Jose Independent Mill and Lumber Company to said line of San Pedro Street; and thence along said line of San Pedro Street, southerly 27 92—100 feet to place of beginning.” Can we say this description embraces no land, and the sheriff could place no one in possession of any premises? Can we say the line back from Market Street is on the same line approaching Market Street? We think not. The judgment is affirmed.

Morrison, C. J., McKee, J., and Thornton, J., concurred.

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Myrick, J.

When this cause was before the court in department, an opinion was filed as follows: —

“ The objection that the affidavit of service of summons is fatally defective, because it does not state that the appellant on whom the summons alone was served, and the defendant on whom a copy of the complaint was served with the summons, were residents of the same county, is overruled, on the authority of Calderwood v. Brooks, 28 Cal. 153. The allegation that appellant covenanted and agreed to pay the mortgage debt and discharge the mortgage lien is sufficient to sustain the judgment. There is a sufficient description of the premises.”

After hearing by the court in Bank, we see no cause for changing the views expressed in department. We will, however, add, as to the sufficiency of the description of the premises, that all reference to lot 2 and map may be omitted, and a description be found. Let the description as found in the mortgage and decree be slightly transposed (lines and distances given as stated), and the description may read thus: “ Beginning at a point on the easterly line of San Pedro Street 27 92-100 feet southerly from a point where the southerly line of the lands of the San Jose Independent Mill and Lumber Company strikes said easterly line of San Pedro Street, and running from said point at right angles with said street to the westerly line of Market Street; thence along the line of lands of Cresta, Reed, and San Jose Independent Mill and Lumber Company to said line of San Pedro Street; and thence along said line of San Pedro Street, southerly 27 92—100 feet to place of beginning.” Can we say this description embraces no land, and the sheriff could place no one in possession of any premises? Can we say the line back from Market Street is on the same line approaching Market Street? We think not. The judgment is affirmed.

Morrison, C. J., McKee, J., and Thornton, J., concurred.

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Bluebook (online)

8 P. 185, 67 Cal. 582, 1885 Cal. LEXIS 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pellier-v-gillespie-cal-1885.

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