<p>Alias Summons—Form of—Insertion of Name of Defendant.—The provision of section 408 of the Code of Civil Procedure, as to the form of an alias summons, means no more than that it shall conform to the requirements of section 407 of that code, and does not preclude the insertion therein of the name of a defendant, which, through clerical error, had been omitted from the original summons.</p> <p>Id.—Judgment-roll—Issuance of Alias Summons Assumed from Eecitals,—Publication of Summons.—Where the judgment-roll fails to show the issuance - of an alias summons, but contains an affidavit of publication of such summons sufficient in form as against a defendant named therein who was not personally served, and the judgment recites that proof of service upon all the defendants had been duly shown, it will be assumed, in support of a default judgment against such defendant, in the absence of anything in the judgment-roll tending to rebut the recital of the judgment, that an alias summons, in the form set forth in the affidavit of publication, was issued prior to the publication.</p> <p>Id.—Time for Issuance of Alias Summons.—In order to sustain a default judgment based upon a service by publication of an alias summons, it was not necessary that such alias summons should have been issued prior to the making of the affidavit for publication, or prior to the making of the order for publication. It is sufficient that such summons was issued at any time prior to the commencement of the publication service ordered.</p> <p>Id.—Vacating Judgment for Fraud—False Statements in Affidavit for Publication—Extrinsic Fraud.—An unconscionable judgment based solely upon constructive service of process, obtained without any knowledge of the action on the part of the defendant and in such a way that no opportunity has ever been given him to be heard in his defense, will be annulled at the suit of such defendant in an action brought in a timely manner for that purpose, when it appears that the plaintiff in such action knowingly and willfully made a false showing as to material facts for the purpose of obtaining the order for service of summons by publication. Such conduct on the part of the person obtaining the judgment amounts to extrinsic fraud upon the court in procuring the judgment.</p> <p>Id.—Fraudulent Judgment Quieting Title to Land—Bona Fide Purchaser.—A judgment quieting the title to land, which was so fraudulently obtained but which was valid upon its face, will not be vacated at the instance of the person defrauded, as against a subsequent bona fide purchaser of the land, who acquired it upon the faith of the judgment, for a valuable consideration, and without notice or knowledge of any fact tending to show fraud in the matter of obtaining the judgment.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1911-05-12
How this case has been cited
Cited by 19 later decisions — most recently January 2017
19 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1In response to the petition for rehearing, it is proper to say that we fully realize the apparent hardship of the case so far as the plaintiff is concerned. But so far as the defendant Hampton is concerned, we see no force in any of the points made by counsel for plaintiff, all of which are correctly decided in the department opinion. We do not hold that plaintiff is without remedy by way of damages as to defendant herein, whose default was regularly entered, and as to whom no judgment has been given. Whether or not such relief can now be awarded against him in this action is a question that has never been suggested by counsel either in the lower court or in this court.
