Cooper v. Superior Court of San Joaquin Cty. , 26 Cal. App. 629 ( 1915 )

Petition for writ of review. It is alleged that, in February, 1897, an action was commenced in the superior court of San Joaquin County by N. Arata, plaintiff, against William E. Cooper and Annie Cooper, defendants, for the foreclosure of a mortgage; that return of service of summons was made by one J. L. Nye, whose affidavit of service failed to show that he was over the age of eighteen years; that said summons was never in fact served upon the defendants in the action; that the default of defendants to answer was entered and decree of foreclosure thereafter made and entered, on February 23, 1897; that defendants had no notice or knowledge of the pendency of said action or of the judgment entered therein until the twenty-first day of October, 1914. Petitioners pray that defendant be called upon to show cause why said judgment should not be set aside and annulled.

The service of summons was insufficient (Lyons v. Cunningham,66 Cal. 43, [4 P. 938]), but we do not think the judgment, after so great a lapse of time, should be set aside in this somewhat summary manner. Petitioners should seek relief by some appropriate proceeding in which the purchaser at the foreclosure sale, if there was such sale, or other persons having an interest in the property arising out of such foreclosure proceedings may have an opportunity to be heard.

It has been held that the remedy by certiorari is barred by the lapse of time within which an appeal from the judgment may be taken unless circumstances of an extraordinary character be shown to have intervened. (Keys v. Marin County, 42 Cal. 256;Reynolds v. Superior Court, 64 Cal. 372, [28 P. 121];Smith v. Superior Court, 97 Cal. 348, [32 P. 322].) Eighteen years have passed since the judgment was entered. We think the mere statement that petitioners were not in fact served with summons and had no knowledge of the pendency of the action, is not enough to justify the issuing of the writ. Some facts or circumstances explaining why they had no knowledge or means of knowledge of so important a matter affecting their title to the property should appear.

The writ is denied.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 19, 1915.