JABEZ M. BALDWIN v. WESLEY MORGAN, 50 Cal. 585

By the Court : The contract of sale executed to McCabe by the Western Pacific Railroad Company, under which McCabe entered into possession, vested in him a perfect equity to the premises therein described, and an absolute right to a conveyance in fee, so soon as the company should obtain a patent from the government of the United States. By successive conveyances this equity passed to Sparling, and (subject to the lien of the mortgage delivered by the latter to the defendant Morgan), to Jordan & Clayton, and finally came to Jabez M. Baldwin, the plaintiff in this action.

The question upon which the case turns is, whether Baldwin is to be considered to have been a party to the decree of foreclosure subsequently entered upon the mortgage delivered by Sparling to Morgan. The summons in the action by which that mortgage was foreclosed was personally served upon Baldwin. The return of the sheriff indorsed upon the summons was that he had served Baldwin—“personally served the same (the summons) on the 10th day of November, 1871, on Jabez M. Baldwin, named in the within summons ‘John Doe,’ by delivery to him, said defendant, personally,” etc.

Had Baldwin been named in the complaint as a defendant in the first instance, or had his name, after service of the summons, been inserted in the complaint by leave of the court, the proceedings would have been regular in all respects. But this was not done.

It is true that the decree of foreclosure as entered recited that Baldwin had been duly served with the summons and complaint in the cause, and had, by the order of the court, been duly substituted as a defendant therein “in the place and stead of John Doe, a fictitious name.” But no order appears to have been actually entered, nor does a copy thereof appear upon the judgment-roll. The omission in this respect undoubtedly amounted to an irregularity, and one for which the decree would have been reversed here had a timely appeal been taken. (McKinlay v.

Tuttle, 42 Cal. 570.) The inquiry here, however, as to the validity of the decree, is not direct, as upon appeal, but collateral merely. The true inquiry, therefore, is not as to whether jurisdiction has been irregularly exercised, but is limited to the question whether it was obtained at all. The personal service of the summons upon Baldwin certainly vested the court with jurisdiction over him, and however irregular its subsequent exercise, the validity of the decree rendered is not now open to inquiry. We so held in Campbell v.

Adams, ante, p. 203,—a case not distinguishable from this case in principle,-—and the views then expressed are decisive of this case. Judgment and order denying a new trial reversed and cause remanded for a new trial.