Hestres v. Clements
California Supreme Court
Appeal from the Fifth Judicial District. Ejectment by Emile Hestres, administrator of Comstock against Thomas Brannan, Charles L. Clements, Andrew Harris, and-Hopkins, to recover a tract of land and mesne profits. The complaint was filed and a summons issued April 7th, 1862, and on the same day the Sheriff delivered to Clements & Harris each a copy of the summons, but without a copy of the complaint.
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Appeal from the Fifth Judicial District. Ejectment by Emile Hestres, administrator of Comstock against Thomas Brannan, Charles L. Clements, Andrew Harris, and-Hopkins, to recover a tract of land and mesne profits. The complaint was filed and a summons issued April 7th, 1862, and on the same day the Sheriff delivered to Clements & Harris each a copy of the summons, but without a copy of the complaint. On the 24th of April a like service was made on Hopkins, and Brannan was served with copy of summons and copy of complaint, all in San Joaquin County. April 26th, the Clerk entered a default…
1Opinion of the CourtCope, J.
Norton, J. concurring.
The judgment in this case must be reversed for irregularity in the proceedings. When the judgment was entered there was a demurrer on file which had not been disposed of. Two of the defendants demurred separately, and the record shows that but one of the demurrers was acted upon. The other was filed after a default had been taken, but the attorneys for the plaintiffs accepted service of it, thereby waiving the default.
Judgment reversed, and cause remanded.
2Cited by11 opinions
- Polack v. McGrathCalifornia Supreme Court · 1867
- Cuddahy v. GraggCalifornia Court of Appeal · 1920
- Cutler v. HaycockUtah Supreme Court · 1907
- Brown v. Pacific Telephone & Telelegraph Co.California Court of Appeal · 1980
- Payne v. DavisMontana Supreme Court · 1876
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