Merced Bank v. Rosenthal

Citations

• 99 Cal. 39
• 33 P. 732
• 1893 Cal. LEXIS 613

Syllabus

<p>Appeal—Service op Notice—Partner not Served with Summons.—In an action against two partners to have a deed executed by one of them declared a mortgage to secure the partnership, indebtedness, in which the other partner was not served with summons and did not appear in the action, and the issues were made up and a trial and judgment had between the parties to the deed in his absence, the absent partner is not an adverse party upon whom the notice of appeal must be served, within the meaning of section 940 of the Code of Civil Procedure.</p> <p>Appeal from Void Judqment—Jurisdiction.—The supreme court will entertain an appeal from a void judgment rendered by a court without jurisdiction, or eoram non judice. where it is entered in form as a judgment in the records of a court upon which final process might be issued.</p> <p>Term of Office of Superior Judges—Time of Commencement—Constitutional Construction.—Though by the terms of section 6 of article XI. of the constitution the commencement of the term of office of the superior judges, appears to be exclusive of the first Monday of January next after their election, yet this provision is controlled by the provision of section 20 of article XX., making the terms of all officers elected under the constitution commence on the first.Monday after the first day of January next following their election.</p> <p>Judgment Rendered after Term—Jurisdiction of Judge de Facto.—A judgment rendered by a retiring superior judge on the first Monday of January next after the election of his successor, is not coram non judice, and void for want of jurisdiction, where it appears that both the outgoing and incoming judge were of the opinion that the term of the incoming judge did not commence until the following day, and the outgoing judge was in fact holding court on that day, and the superior judge elect was before him as an attorney. Under such circumstances the outgoing judge was clearly a judge de facto.</p> <p>Deed of Homestead Inte