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People v. Pearson

Supreme Court of California
Jun 5, 1888
76 Cal. 400 (Cal. 1888)

Opinion

         Appeal from an order of the Superior Court of Fresno County refusing to vacate a judgment.

         COUNSEL:

         Frederick S. Stratton, and Bruce Cavitt, for Appellant.

          W. H. Creed, and R. B. Terry, for Respondent.


         JUDGES: In Bank. Thornton, J. Searls, C. J., McFarland, J., Sharpstein, J., Paterson, J., and McKinstry, J., concurred.

         OPINION

          THORNTON, Judge

         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 [18 P. 425] 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.


Summaries of

People v. Pearson

Supreme Court of California
Jun 5, 1888
76 Cal. 400 (Cal. 1888)
Case details for

People v. Pearson

Case Details

Full title:THE PEOPLE, Respondent, v. J. W. PEARSON, Appellant

Court:Supreme Court of California

Date published: Jun 5, 1888

Citations

76 Cal. 400 (Cal. 1888)
18 P. 424

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