Opinion
Department One
Appeal from an order of the Superior Court of the city and county of San Francisco refusing to set aside a judgment and to quash the execution issued thereon.
COUNSEL:
I. N. Thorne, for Appellant.
W. H. Allen, for Respondent.
JUDGES: McKinstry, J. Searls, C. J., and Paterson, J., concurred.
OPINION
McKINSTRY, Judge
The summons was not served on the defendant A. W. Vigoureaux. (Maynard v. McCrellish , 57 Cal. 355; Howard v. Galloway , 60 Cal. 10; Weil v. Bent , 60 Cal. 603; Doerfler v. Schmidt , 64 Cal. 265; Lyons v. Cunningham , 66 Cal. 43.) Nor did A. W. Vigoureaux appear in the action before or after the judgment. The superior court had no jurisdiction to enter the judgment against him.
W. A. Vigoureaux, calling himself "one of the defendants" in the action, gave notice of a motion to vacate the judgment, quash executions issued thereon, etc. The notice was accompanied by an affidavit made and subscribed [17 P. 434] "W. A. Vigoureaux," wherein the affiant swore that he was one of the persons named as defendant in the action B. A. Barney v. A. W. Vigoureaux et al .; and that the summons in that action was, on September 30, 1878, returned and filed "with an affidavit of a pretended service thereof on the affiant"; that a judgment was entered "in favor of plaintiff and against this affiant"; that an execution was issued on the judgment, under which the sheriff had sold "all the right, title, and interest of this affiant, defendant as aforesaid," in certain described land and premises, of which the affiant is owner and in possession. The affidavit proceeds to state facts showing that the affiant was not served at all, and to aver that he had no notice or knowledge of the action, or that a judgment had been entered against him, until after the sale of certain personal property of his, under an execution running to Santa Clara County.
However persistent the effort of W. A. Vigoureaux to make himself by affidavit a defendant in the judgment, he did not succeed in the attempt.
A. W. Vigoureaux has appealed from the order of the superior court denying the motion of W. A. Vigoureaux. He can hardly complain that under a judgment against him the sheriff has levied upon and sold property of W. A. Vigoureaux.
Had W. A. Vigoureaux been served with summons, the judgment would perhaps have bound him, notwithstanding a misnomer, if there was one, in the absence of a plea in abatement. But there was no service upon any defendant in the action other than Banks, and no judgment was entered against W. A. Vigoureaux.
Nevertheless, as the complaint was not answered by A. W. Vigoureaux, nor by any person served as A. W. Vigoureaux, the affidavit or proof of service was a necessary part of the judgment roll. (Code Civ. Proc., sec. 670.) Thus it appears on the face of the judgment roll that the court never acquired jurisdiction of the person of the defendant Vigoureaux. On this fact being called to the attention of the court below in any manner, the judgment should have been vacated. But under the circumstances, no costs should be allowed appellant, who took no steps to set aside the judgment in the court below, but acquiesced in the making of his debt out of the property of another person.
The foregoing assumes that A. W. and W. A. Vigoureaux are two men, and not the same man, because such is the fact so far as appears from the judgment roll.
The order appealed from is reversed, and the court below is directed to enter an order vacating and setting aside the judgment and the proceeding taken under it, without costs to the appellant, either in this court or in the superior court.