Majority
p. 511TREAT v. McCALL, BRADY, et als.
Headnote
A personal judgment can not be given against a party not served with process, in an action on a joint obligation of several defendants.Appeal from the District Court of the Fifth Judicial District, County of Calaveras.
p. 512
This was an action on a promissory note and mortgage. The complaint prayed for judgment against all of the defendants, eight in number, and for a foreclosure of the mortgaged premises. The summons was served on all of the defendants except James Brady, who was not served—nor did he appear in the action. The Court below entered a personal judgment against all of the defendants, and ordered the sale of the mortgaged premises. The defendants appealed, and assigned as error the judgment.
Robinson and Beatty for Appellants.
Latham and Sunderland, for Respondent, confessed the error of the judgment of the Court below against James Brady personally.
Field, J., and Baldwin, J., concurring.
The Court below erred in entering a personal judgment against Brady, one of the defendants, who was not served with process.
The judgment is reversed, and cause remanded, with directions to the Court below to enter a judgment in accordance with the provisions of the first subdivision of section thirty-two of the Civil Practice Act.