Pico v. Carillo

Decided July 1, 1857

California Supreme Court · decided 1857-07-01

Pico and Manso, plaintiffs in the Court below, on the twenty-first of May, 1855, instituted suit against Carillo and Sibrian, for the recovery of a large sum of money. Summons was issued, which, as to the defendant Sibrian, was returned with the following acknowledgment of service: “I hereby waive copy of complaint and summons, and accept service in the County of Contra Costa, this twenty-first day of May, a. n. 1855. his .“Ignacio M Sibrian.” marie.

Decided 1857-07-01

Murray, C. J.,

¶1delivered the opinion of the Court—Terry, J., concurring.

¶2The order of the Court below, setting aside a default, and judgment entered during vacation, was regular and correct, inasmuch as there had been no service of summons upon the defendants.

¶3This proceeding is expressly warranted by the sixty-eighth Section of the Practice Act, and, in a case where there has been no service whatever, it is not necessary to file a bill in chancery to vacate the judgment; but it may be set aside or re-opened, on motion, within the time allowed by law.

¶4Although the “ want of proper legal service ” was the ground of the defendants’ motion in the Court below, the record shows that there was, in fact, no service whatever.

¶5•Judgment affirmed.