Butler v. Soule

Citations

• 124 Cal. 69
• 56 P. 601
• 1899 Cal. LEXIS 942

Syllabus

<p>Foreclosure of Mortgage—Recitals in Decree—Jurisdiction—Motion to Vacate Judgment.—Where a decree rendered upon the foreclosure of a mortgage recites due service of summons and a copy of the complaint upon defendants named therein, including the mortgagor, and there is nothing in the judgment-roll to contradict or impeach the recitals contained in the decree, the facts recited must be deemed to be true; and a tenant in possession under the mortgagor, who moves to vacate the decree for want of jurisdiction over the premises, or over the person of the mortgagor, is concluded by the recitals of the decree, which import absolute verity.</p> <p>Id.—Motion to Vacate Second Judgment—Vacation of First Judgment for Inadvertence—Presumptions—Collateral Attack.—The fact that the motion was made to vacate a second judgment does not entitle it to be entertained, where the second judgment is not void upon its face, and no fraud or Imposition is shown in procuring its entry; and where the record shows that the first judgment was vacated for Inadvertence, and that the time for appeal from the order vacating, it had expired, without any appeal therefrom or modification thereof, it will he presumed, upon the collateral attack thereon made upon the motion to vacate the second judgment, that the order vacating the first judgment was properly made, and that circumstances arose which justified it, and that the court had jurisdiction to enter the second judgment.</p> <p>Id.—Motion Barred by Lapse op Time.—A notice of motion to vacate a judgment which is not void upon its face, nor shown to he fraudulent, served and filed after the lapse of six months from the entry of the judgment, is barred by lapse of time.</p> <p>Id.—Parties to Motion—Junior Mortgagee.—A junior mortgagee whose mortgage has been foreclosed by the second judgment, Is unaffected by the motion to vacate the judgment, if not brought in on the motion as a party thereto.</p>