Linott

The complaint herein is upon a promissory note purporting to have been made by four persons who are named as defendants in the action. Judgment by default was rendered against three of the defendants, from which one of them—Thomas Rowland—has appealed.

The affidavit of service of the summons and complaint upon the appellant is as follows:

As this affidavit fails to show any service upon the appellant, and is the only proof of service in the record, it is insufficient to sustain a judgment upon a direct appeal therefrom. (McMillan v. Reynolds, 11 Cal. 372 ; Schloss v. White, 16 Cal. 66 ; McKinlay v. Tuttle, 42 Cal. 577 ; People v. Bernal, 43 Cal. 385 .) Upon this proof of service the clerk had no authority to enter the default of the appellant, and the judgment against him upon such default is erroneous. (Reinhart v. Lugo, 86 Cal. 395 ; 21 Am. St. Rep. 52 .) The affidavit of service does not show that any copy of the summons or complaint was delivered to the appellant by Fleming, and a charge of perjury against him for making the affidavit would not be sustained by proof that such delivery was never made.

After the clerk had entered the default of the appellant the plaintiff…