Fanning v. Foley

Temple, C. This action was commenced November 1,1879, in the District court of the Twenty-Third Judicial District, to foreclose a street assessment, and the summons was issued on the same day. November 4th it was served upon certain named defendants, none of whom, as is now admitted, had or ever had any interest in the premises upon which it is sought to foreclose the lien. [338] It is admitted that Joseph D. Gaven was the sole owner of the premises, and continued to be so up to the time of his death, after which his executor sold the land to one Capurro. Gaven was made a defendant, but was not served with summons. It’ is averred in the complaint that he was a minor, and Mrs. Sarah Ann English was served as his guardian. She made no appearance and her default was entered as guardian of Gaven. Of course, this was of no consequence, as it bound neither Mrs. English nor her ward. The summons was not returned until August 13, 1889, at which time it was filed. September 25, 1891, plaintiff made a copy of this summons without taking it from the files, and handed such copy to Capurro. An affidavit was made on behalf of plaintiff to the effect that the affiant had duly served the summons on Capurro by handing him a copy thereof. This affidavit does not appear to have been filed, but, as is stated, was attached to the summons which had been previously filed — pinned to it, as is stated in the notices — whether with or without the knowledge of the custodian of the record does.not appear, save from the presumption that plaintiff’s counsel would not have done such a thing clandestinely. Capurro was never made a party to the suit in any way, nor was he served as John Doe, although such a person appears to have been a defendant. Furthermore, the suit was dismissed as to John Doe by plaintiff. Capurro did not appear in the case by any pleading. January 29, 1891, a decree was entered in the superior court before Hon. F. W. Lawler, judge, foreclosing plaintiff’s lien. The decree does not run against Capurro. On motion of Mrs. Sarah A. English, this decree was set aside and vacated September 21, 1891. Mrs. English then gave notice of a motion to dismiss the action because not prosecuted with reasonable diligence. Capurro also moved to quash the service of summons upon himself, and separately, as successor in interest to Gaven, gave notice of a motion to dismiss the action for want of prosecution. Both motions were granted, and plaintiff appeals from all these orders. It is obvious that all these orders must be affirmed. The decree was absolutely void, and the court was right in removing it from the record. The owner of the fee [339] had never been brought in by appearance or service, and had Gaven been alive he could not have been served at the time of the attempted service upon Caparro. It was eleven years after filing the complaint. The summons having been returned was fundus offiaio. If the practice adopted by plaintiff can be sustained, it will practically nullify in part sections 406, 408, and 581 of the Code of Civil Procedure. The fact that Capurro purchased the interest of Gaven after suit brought did not ipso fado make Capurro a defendant. Gaven had never been served and had not appeared in the suit, and it was then too late effectually to bring him in, had he been alive. Perhaps had Gaven been alive, Capurro might, under our code, have appeared and defended in the name of Gaven, or have had himself substituted as defendant, but plaintiff could not at will, without any action on the part of the court or Capurro, consider and treat him as such. The action was properly dismissed. Under the code plaintiff had lost his right to bring in the real defendant, and it was of no benefit to him to keep the suit pending. Capurro as purchaser from Gaven had such an interest as would authorize him to make the motion. Capurro appeared for that purpose only after the decree had beén vacated.- Even if it must be considered as a general appearance in that case, it would not help plaintiff. Capurro was entitled to the relief granted. I ádvise that the orders appealed from be affirmed. Searls, C., and Belcher, C., concurred. For the reasons given in the foregoing opinion, the orders appealed from are affirmed De Haven, J., Fitzgerald, J., McFarland, J.