Sutter v. Cox

Decided July 1, 1856

California Supreme Court · decided 1856-07-01

<p>Appeal from the District Court of the Tenth Judicial District, County of Yuba.</p> <p>Action of ejectment and for an injunction to stay waste. Judgment was entered in the Court below for plaintiff, on default of defendants. One of the defendants was sued as James Cox. The return on the summons shows service on John Cox; and judgment was entered against J. Cox. The Defendants moved on affidavits, in the Court below, to set aside the default, which motion was overruled, and defendants appealed.</p>

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Decided 1856-07-01

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Cited by 4 later decisions — most recently July 1908

4 state decisions

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The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

¶1Mr. Chief Justice Murray concurred.

¶21. The objection to the form of the declaration comes too late. It should have been made in the Court below.

¶32. There is nothing to show any error in the refusal of the District Court to set aside the default. The loose affidavits referred to in the argument are no part of the record.

¶43. One of the defendants was sued by the name of John Cox. Service is returned upon James Cox, and the judgment is against J. Cox. *416This is error, unless there was something in the record to show that the person served was the person sued.

¶5The judgment is therefore reversed, and the cause remanded as to J. Cox, but affirmed against the other defendants.