Linott v. Rowland

Citations

• 119 Cal. 452
• 51 P. 687
• 1897 Cal. LEXIS 918

Syllabus

<p>Judgment by Default—Service of Summons—Insufficient Affidavit— Appeal.—An affidavit of the service of summons which fails to show any service thereof upon an appealing defendant, and upon which no charge of perjury could be sustained, no other proof of service appearing in the record, is insufficient to authorize the clerk to enter a judgment by default against him, or to sustain such judgment upon a direct appeal therefrom.</p> <p>Id.—Amendment of Complaint after Default—Vacation of Default-Omission of Service—Support of Judgment.—The filing of an amended complaint supersedes the original; and where the complaint is amended in matter of substance after the default of a defendant has been entered, it has the effect to vacate the default; and, if such amended complaint is not served upon the defaulting defendant, there is no pleading upon which a judgment against him can be sustained.</p> <p>Id.—Order Refusing to Quash Execution—Appeal—Insufficient Record —Dismissal.—An appeal from an order refusing to quash an execution issued upon a judgment by default will he dismissed, where the record contains no bill of exceptions relating to the order, and no stipulation from which it can he determined upon what papers the motion was heard.</p>