Tucker

J. H. Lavenson commenced an action in the justices’ court of the city and county of San Francisco against Edwin W. Tucker et al. to recover a money judgment for twenty-five dollars, with interest and costs. The complaint properly stated the cause of action, and a summons was issued thereon, a copy of which, with a copy of the complaint, was duly served on the defendant Tucker. The summons was defective in that by some mistake or inadvertence the name of the plaintiff in the title of the cause was written “C. Hirsch” instead of “J. H. Lavenson,” but in all other respects it was in proper form and sufficient. Tucker failed to appear and answer or demur within the time required, and judgment by default was entered against him. Twenty-three days after the judgment was entered, and nine days after a writ of execution had been issued thereon, he moved the trial court to recall the execution and to vacate and set aside the default and judgment upon the ground that no summons had ever been served on him, and the court never acquired jurisdiction of his person. In support of his motion he filed his affidavit, stating that he had never been served with a summons in said suit; that he was…