Schart v. Schart

Citations

• 116 Cal. 91
• 47 P. 927
• 1897 Cal. LEXIS 514

Syllabus

<p>Summons—Service bt Publication—Mailing of Copt—Completion of Service.—When the affidavit for publication of summons shows that the residence of nonresident defendants is known to the plaintiff, and the order for publication requires copies of the summons to be mailed to each of them, the substituted service is not complete unless the ; copies of the summons are deposited in the postoffice, directed to the defendants as required by tbe order.</p> <p>Id.—Foreclosure of Mortgage—Vacation of Judgment bt Default-Motion of Prior Mortgagee.—Upon proof by affidavit of failure to deposit copies of the summons in the postoffice as directed by the order of publication, in an action to foreclose a mortgage against nonresident defendants, upon motion of one of them, who is shown to be the holder of a mortgage prior to that which was foreclosed, made within one year after the entry of the judgment, it is the right and duty of the court to set aside the default and judgment inadvertently entered.</p> <p>Id.—Purchase of Property by Plaintiff—Service of Notice of Motion—Codefendant NOT' Affected.—Where' it appears that the plaintiff was the purchaser of the mortgaged property under his decree of foreclosure, the notice of motion by a prior mortgagee to set aside the default need only be served upon the plaintiff, and need not be served upon a codefendant against whom no relief is sought upon the motion, and who is not affected by the order vacating the judgment.</p>