Pico v. Carillo

7 Cal. 30

• Court: California Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Murray, C. J.,

delivered the opinion of the Court—Terry, J., concurring.

The order of the Court below, setting aside a default, and judgment entered during vacation, was regular and correct, inasmuch as there had been no service of summons upon the defendants.

This proceeding is expressly warranted by the sixty-eighth Section of the Practice Act, and, in a case where there has been no service whatever, it is not necessary to file a bill in chancery to vacate the judgment; but it may be set aside or re-opened, on motion, within the time allowed by law.

Although the “ want of proper legal service ” was the ground of the defendants’ motion in the Court below, the record shows that there was, in fact, no service whatever.

•Judgment affirmed.