Opinion
APPEAL from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.
Action to set aside a deed upon the ground that it was fraudulently obtained. The complaint contained no averment of the delivery of the deed.
Proof of service of summons was made by affidavit. The affidavit was made March 7, 1879, and in it the affiant states, "that I am over the age of eighteen" and "that I did, on the sixth day of March, 1879, personally serve the defendant," etc.
COUNSEL:
H. S. Mulford, for Appellant.
Thomas Watts, for Respondent.
OPINION
PER CURIAM.
The proof of service of the summons was insufficient. Maynard v. McCrellish, 57 Cal. 355, was decided upon a similar state of attempted proof. The statement in the affidavit used on the motion to set aside the default cannot be deemed a waiver of the service. We cannot look beyond the judgment roll for the purpose of ascertaining the validity of the judgment.
It is argued that the complaint does not state facts sufficient to constitute a cause of action, in that it does not aver a delivery of the deed. We think the point is well taken.
Judgment and order reversed and cause remanded for further proceedings.