Opinion
Appeal from the District Court of the Fifth Judicial District, County of Calaveras.
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.
COUNSEL:
Robinson and Beatty, for Appellants.
Latham and Sunderland, for Respondent, confessed the error of the judgment of the Court below against James Brady personally.
JUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Baldwin, J., concurring.
OPINION
TERRY, Judge
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 Pr. Act.