People v. Pearson

18 P. 424, 76 Cal. 400, 1888 Cal. LEXIS 901

Opinion

Thornton, J.

This action was brought to foreclose the interest of the defendant, as a delinquent purchaser from the state, in a certificate of purchase of lands in Fresno County. The judgment was by default, and was entered after an alleged constructive service of the summons by publication. The judgment was entered in favor of plaintiff on the 25th of October, 1876. Defendant moved to vacate the judgment, on the ground that there had never been any affidavit made or order directing the service of summons by publication. The motion was denied, and defendant excepted. It appears from the bill of exceptions that no affidavit was ever made, or any order of court directing service of summons by publication. The court" therefore, never acquired any jurisdiction of defendant, and the judgment rendered is erroneous and void. This conclusion is sustained by People v. Applegarth, 64 Cal. 229, and People v. Mullan, 65 Cal. 396. The court erred in denying defendant’s motion to vacate the judgment. The application for such vacation is a direct proceeding (People v. Mullan, supra), and was made in time. (People v. Greene, 74 Cal. 400.) The order is reversed, and cause remanded, with directions to vacate the judgment.

Searls, C. J., McFarland, J., Sharpstein, J., Paterson, J., and McKin.stry, J., concurred.