La Fetra v. Gleason

Citations

• 101 Cal. 246
• 35 P. 765
• 1894 Cal. LEXIS 1018

Syllabus

<p>Foreclosure of Mortgage—Default Judgment Against Nonresident —Finding—Service of Summons—Appeal—Jurisdiction.—In an action to foreclose a mortgage, where the default of the defendant was regularly entered, and the court found specially in the decree that he was duly served and made default, such finding is conclusive upon appeal, unless some other part of the judgment-roll overcomes or contradicts it; and an affidavit annexed to the returned summons stating that he served the summons personally on the defendant in Clinton county, in the state of Missouri, does not show a want of jurisdiction in the court to render the decree of foreclosure as against such defendant.</p> <p>Id.—Proceeding in Rem—Publication op Summons—Service Out op State.—The foreclosure of a mortgage is in its nature a proceeding in rem against the mortgaged property, and in such a proceeding personal service of summons within the state is not necessary to the jurisdiction, hut summons may he served on a nonresident by publication, in pursuance of an order in court based upon an affidavit, and when publication is ordered, the personal service of a copy of the summons and complaint out of the state is equivalent to publication.</p> <p>Id.—Judgment-Roll—Presumption.—The affidavit and order for publication are no part of the judgment-roll, and where there is nothing in the judgment-roll inconsistent with the finding by the court of due service of the summons, it must be presumed upon appeal in support of the judgment, that the finding was based upon a service made in pursuance of the statute.</p> <p>Id.—Appeal From Order—Refusing to Set Aside Default.—Bill op Exceptions—Affidavits.—Upon an appeal from an order refusing to set aside a default, where the bill of exceptions merely shows that such a motion was made and denied, affidavits and other documentary matter printed in the transcript, not made a part of the bill of exceptions nor identified as part of the record cannot properly be considered.</