Sacramento Sav. Bank v. Spencer

53 Cal. 737

Opinion

By the Court :

The defendant claims that the decree in the foreclosure suit is void, because it appeal's from the return of the Sheriff that no copy of the complaint was served with the summons on Spencer, one of the defendants therein. There were, however, three defendants to that action, to wit, Robert W. Spencer, John Doe, and Richard Roe. Three persons were sued, and the circumstance that the real names of two of them were unknown to plaintiff, and that they were designated by fictitious names, did not reduce the number of defendants. The Practice Act of 1851, as amended in 1860, provided: “ If there be more than one defendant in the action, and such defendants reside within the county, a copy of the complaint need be served on only one of the defendants.” If there was service of a copy of the complaint on either of the other defendants, the service of summons on Spencer (if in other respects a good service) was sufficient to give the Court jurisdiction. The transcript does not show affirmatively that there was no service of the complaint on another defendant, but if it did, this would be but irregularity. The defendant knew from the summons that he was impleaded with others, and that either of the others might have had served on him a copy of the complaint. It was his duty, under these circumstances, to search the files of the Clerk’s office, and he could not remain silent and then claim that the judgment against him was void. (Drake v. Duvenick, 45 Cal. 446.) The summons was served upon the defendant Spencer personally.

It is alleged that Spencer was insane at the time of such service.

The “Act to provide for the appointment of guardians,” (Statutes 1850, p. 268) prescribes the mode of appointing guardians for insane persons. In the present case, it does not appear that any guardian had been appointed under that act, or under the laws relating to the State Insane Asylum. (Hittell’s Gen. Law, sec. 3803.) Sec. 29 of the Practice Act of 1850, (Amended Statutes 1861, p. 496) provides that service shall be had upon an individual defendant personally, unless he is a minor or a person judicially declared insane, or of unsound mind, for whom a guardian has been appointed.

Judgment and order affirmed. Remittitur forthwith.