MacLay Company v. Meads

This is an appeal from an order setting aside the judgment and default entered in favor of the plaintiff. The action is for unlawful detainer, and was instituted on the twenty-third day of November, 1909, for the purpose of securing restitution of certain premises, situated in the city of Petaluma, Sonoma county, which were, by an instrument in writing, leased by the plaintiff to N. L. Meads, one of the defendants herein, for the term of one year from the first day of July, 1908, at the monthly rental of $75, payable in advance on the first day of each and every month during said term, and for judgment, for treble the amount of rent found by the court to be due. (Code Civ. Proc., sec. 1174.) The complaint alleges that said Meads "assigned said written agreement and lease to the Petaluma Transportation Company"; that "said defendants, N. L. Meads, Chas. P. Doe, G. L. Ray, and H. G. Cox, or some of said defendants, or others to this plaintiff unknown, constituted, and, at the time of said assignment of said lease constituted, the Petaluma Transportation Company," and that said defendants, or some of them, or others unknown to the plaintiff, "acting and assuming to act under the name…

The point is made in the petition that the judgment of this court should have been that the order appealed from, in so far as it affected the defendants who were duly served with summons as well as those not served, but who made a general appearance in the proceedings on the motion to vacate the judgment, be reversed. It is asked that the judgment of this court be so modified as to conform to that suggestion. As counsel for appellants suggest in the petition, the order vacating the judgment is rather ambiguous. All the defendants joined in the motion to vacate the judgment. The order of the court reads as follows: "The motion to set aside the judgment and default of Petaluma Transportation Company is granted." While the order is, as stated, ambiguous or uncertain in that there is nothing therein expressly indicating what disposition was made of the motion as to the defendants other than the Petaluma Transportation Company, it would nevertheless seem to follow, by implication, from the language of the order, that the motion was denied as to said other defendants. Still the court might not have acted at all on the motion in so far as it affected the defendants other than the…