Lewis v. Rigney

Citations

• 21 Cal. 268

Syllabus

<p>Is an action of ejectment against two defendants, one was served with summons and made default, and without any service being had upon the other, a judgment was entered against both for possession of the premises and costs. On application of the defendant not served, an order was made at a subsequent term of the Court, setting aside the entire judgment as to both defendants, with leave to the defendant not served to answer: Held, that this order was proper.</p> <p>Tke-effect of such an order is not to set aside the default of the defendant who had been served, or to permit his co-defendant to defend for both. A new judgment may at once be entered by the plaintiff against the defaulting defendant.</p> <p>The sixty-eighth section of the Practice Act applies not only to cases where a judgment has been taken regularly without personal service, as upon publication of summons, but also to cases of judgments entered erroneously without any service of summons or appearance of defendant.</p> <p>Where, pending a motion by a defendant who had been served with process to set aside a judgment erroneously entered at a previous term against him and a co-defendant who had made default, the plaintiff applied to the Court to correct the judgment by striking out the name of the moving defendant, on the ground that it had been inserted by a mistake of the Clerk : Held, that, admitting the mistake, it was within the discretion of the Court to deny so tardy an application.</p>