Butler v. Tomlinson

By the Court.—Leonard, J. J.The court is deemed to have acquired jurisdiction, and to have the control of all subsequent proceedings in a civil action, only from the time of the service of the summons. (Code, § 139.) Where the service is by publication, the summons is not deemed to be complete until the. expiration of the time prescribed for publication. (Code, § 137.) Notice of the pendency of an action has no effect until the action is commenced. Notice cannot be given of a fact which does not exist. Hence, although the Code (§ 132) permits such a notice to be filed at the time of filing the complaint, it can only be effectual for the purpose intended from the time it becomes really a notice of the fact that an action has been commenced. Prior to the service of summons, the court have acquired no jurisdiction, and have no control over any proceedings in the action, except in cases where there has been a voluntary appearance. For these reasons the grantee of land is not charged with constructive notice of the commencement of an action.of foreclosure, although a Us pendens has been filed,, unless the summons has been served on his grantor before the conveyance of the land. This embarrassment in foreclosure cases has been cured by an act of the Legislature since this action was commenced, but it has no retroactive effect to cure the difficulty here. The order must be affirmed, with $10 costs of appeal. Ingraham, P. J., and Bernard, J., concurred.