Curtis v. Herrick

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring. This was an ejectment to recover a tract of land in Sonoma County. Judgment by default was rendered by the Court against defendants, from which they appeal. Several points have been made and discussed in the argument, which is it not necessary in the view which we have taken of the case to determine. 1. The first objection made by the Appellants is, that an administrator cannot sue to recover possession of real estate in this State. But as the statute gives a right of possession to the administrator, it is difficult to see why he cannot maintain a possessory action to recover it. The complaint asserts his title as administrator, and the default confesses it. 2. It is assigned for error that no legal service of a copy of the complaint was made on the defendants. But the return by the Sheriff expressly asserts that the officer served the defendants with a certified copy of the 'complaint. It is argued that this does not show that the copy was certified by the Clerk, but [120] this criticism is too technical; as the Clerk is the only person who could legally make the certificate, it must be presumed in favor of the officer who has the general power of making service, that he discharged his duty in the legal mode. 8. It is also assigned that several persons were sued in the writ and complaint by fictitious names, and judgment was taken against other parties who bear different names. But the service is returned as made on the particular defendants by their proper names as “ John Doe alias Westfall.” It is true there seems to he no proof that Doe was the same man as Westfall, nor was any necessary. For Westfall after this service on him in this way, having made no appearance or defense, this was equivalent to an admission, that he was the person intended to be sued, and therefore judgment was properly rendered against him. 4. The last assignment of errors is, that in the judgment, damages in a large sum were rendered against each of the defendants, instead of being rendered against all jointly. But an entry appears to have been made by order of the District Judge in another action releasing these damages, and the Respondents offer to remit them in this Court. The judgment is so modified as to remit these damages, and it is otherwise affirmed at the cost of the Appellants. Ordered accordingly.