
    [Civ. No. 1380.
    Third Appellate District.
    February 23, 1915.]
    WILLIAM E. COOPER et al., Petitioners, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY and Honorable JOSEPH H. BUDD, Judge Thereof, Respondents.
    Foreclosure of Mortgage — Summons — Insufficient Affidavit of Service.—In a suit to- foreclose a mortgage where the affidavit of service of summons failed to show that the party serving it was over the age of eighteen years the affidavit was insufficient.
    Id.—Judgment bt Default — Certiorari to Annul — Inappropriate Action.—In such a case certiorari will not lie to annul a judgment entered by default upon such affidavit of service of summons where eighteen years have passed since the judgment was entered; but petitioners should seek relief by some appropriate proceeding at which the purchaser at the foreclosure sale, if there was such sale, or other persons having an interest in the property arising out of such foreclosure proceedings, may have an opportunity to be heard.
    Id.—Certiorari—Bar bt Lapse' of Time.—It has been held that the remedy by certiorari is barred by the lapse of the time within which an appeal from the judgment may be taken unless circumstances of extraordinary character be shown to have intervened.
    Ib.—Pleading—Knowledge of Action.—In such a case the mere statement that petitioners were not in fact served with summons and had no knowledge of the pendency of the action, is not enough ■to justify the issuance of the writ of certiorari; some facts or circumstances explaining why they had no knowledge or the means of knowledge of so important a matter affecting their title to the property should appear.
    APPLICATION for a Writ of Certiorari originally made in the District Court of Appeal for the Third Appellate District to annul a judgment of the Superior Court of San Joaquin County.
    The facts are stated in the opinion of the court.
    A. H. Carpenter, for Petitioners.
   THE COURT.

Petition for writ of review. It is alleged that, in February, 1897, an action was commenced in the superior court of San Joaquin County by N. Arata, plaintiff, against William E. Cooper and Annie Cooper, defendants, for the foreclosure of a mortgage; that return of service of summons was made by one J. L. Nye, whose affidavit of service failed to show that he was over the age of eighteen years; that said summons was never in fact served upon the defendants in the action; that the default of defendants to answer was entered and decree of foreclosure thereafter made and entered, on February 23, 1897; that defendants had no notice or knowledge of the pendency of said action or of the judgment entered therein until the -twenty-first day of October, 1914. Petitioners pray that defendant be called upon to show cause why said judgment should not be set aside and annulled.

The service of summons was insufficient (Lyons v. Cunningham, 66 Cal. 43, [4 Pac. 938]), but we do not think the judgment, after so great a lapse of time, should be set aside in this somewhat summary manner. Petitioners should seek relief by some appropriate proceeding in which the purchaser at the foreclosure sale, if there was such sale, or other persons having an interest in the property arising out of such foreclosure proceedings may have an opportunity to be heard.

It has been held that the remedy by certiorari is barred by the lapse of time within which an appeal from the judgment may be taken unless circumstances of an extraordinary character be shown to have intervened. (Keys v. Marin County, 42 Cal. 256; Reynolds v. Superior Court, 64 Cal. 372, [28 Pac. 121] ; Smith v. Superior Court, 97 Cal. 348, [32 Pac. 322].) Eighteen years have passed since the judgment was entered. We think the mere statement that petitioners were not in fact served with summons and had no knowledge of the pendency of the action, is not enough to justify the issuing of the writ. Some facts or circumstances explaining why they had no knowledge or means of knowledge of so important a matter affecting their title to the property should appear.

The writ is denied.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 19, 1915.  