Schart v. Schart , 116 Cal. 91 ( 1897 )

Searls, C.

This is an appeal from an order of the court below setting aside a judgment by default, rendered against the defendants, on the ground that the summons was served by publication, and that no copy thereof was served upon the defendants by mail or otherwise, although the defendants were nonresidents of the state, and their residence as shown by the affidavit for publication was known, and although the order for publication required copies of the summons to be forwarded to said defendants by mail.

The motion to set aside the default was made within one year after the entry of default and judgment, as provided by section 473 of the Code of Civil Procedure.

The moving affidavits show that defendant Bock is the holder and owner of a prior mortgage upon the property covered by plaintiff's mortgage which was foreclosed in the action.

The substituted service was not complete unless a copy of the súmmons and complaint were deposited in the postoffice, directed to the defendant, as required by the order of the judge.

It became,therefore, not only the right, but the duty, of the court to set aside the default and judgment inadvertently entered.

Appellant objects that the notice of motion by defendant Bock should have been served upon his codefendant, Freda Schart. Bock is not seeking any relief against his codefendant here, but only against the plaintiff. If he shall file a cross-complaint, it will be time enough to serve her therewith. Where the direct legal effect of an order determines the right of a party, he must have notice of the application therefor. This is illustrated in a case where a motion is made to set aside a judgment under which property has been sold and purchased by a third party, where it has been held that such third party must have notice.

In the present instance the property was sold and bought in by plaintiff who had notice, and the direct legal effect of the order appealed from does not, in any way, operate for or against the defendant, Freda Schart.

We recommend that the order appealed from be affirmed.

Britt, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the order appealed from is affirmed.

Harrison, J., Van Fleet, J., McFarland, J.