State v. Woodlief — 2 Cal. 241

Majority — Murray C.J.

p. 241

THE STATE OF CALIFORNIA, Respondent, v. D. J. WOODLIEF, JNO. F. THORP, JNO. C. SMITH, and F. B. SCHAFFER, Appellants.

Headnote

If the summons be radically defective in the requirements of the act of 1851, it will not support a judgment by default.

Appeal from the Fifth Judicial District, Calaveras County.

This suit was brought upon a bond executed by the appellants, conditioned that Woodlief should faithfully perform the duties of the office of Collector of Licenses to Foreign Miners, for Calaveras County; and the complaint assigned as a breach that Woodlief had failed to pay over or account acccording to law for such licenses, to the amount of $9346.93, as shown by the certificate of the Comptroller, which was made an exhibit; and praying judgment therefor, with 25 per cent, damages, interest, and costs. The summons issued June 2d, 1851; and required the defendants to appear at the Clerk’s office, within thirty days after service, to answer the complaint; and to appear at a District Court, to be held for said county at Double Springs, on the first Monday of July, 1851, to abide the order of the Court. The summons was served on all the defendants,in San Francisco, on the 4th of June, 1851. At a special term of the District Court, held the 17th of February, 1852, after reciting that service had been duly made on the defendants, and no answer had been filed by them, and that it appeared from the evidence on

p. 242

the part of the people, that the defendants were indebted to the. State in the sum of $11682.50, the Court adjudged that the plaintiff recover of the defendants that sum, with costs. The defendants appealed.

1st. The summons is defective in being returnable in thirty, instead of forty days. Pract. Act, sec. 25, (Quaere ?) 2d. The summons does not state that judgment by default would be taken unless the defendants appeared and answered; nor specify any amount for which judgment would be taken. Pract. Act, sec. 24; 150. 3d. The Court rendered judgment without ordering the damages assessed. 4th. The defendants were summoned to appear at Double Springs, which was not the county seat.

The Attorney Gteneral declined arguing the case.

delivered the opinion of the Court. The summons in this case is radically defective, and insufficient to support a judgment by default; so much so that the Attorney General expresses his unwillingness to urge the affirmance of the judgment. Under these circumstances, it is unnecessary to look further into the case.

Judgment reversed, &c.