the substantial title in such foreign jurisdiction), or otherwise, by effectually transferring property of a chattel nature situated or payable elsewhere, which is capable, nevertheless, of being transferred by acts done in the domestic jurisdiction, he should be held accountable for due diligence as to such net assets; and so, too, he may enforce the demand against the debtor, without resort to the foreign jurisdiction. If, however, foreign letters and an ancillary appointment at the situs be needful or prudent in order to make title, and to collect and realize such assets, the principal representative should perform the ancillary trust, or have another perform it, observing due diligence and fidelity, according as the laws of the foreign jurisdiction may permit of such a course; and if, in accordance with those foreign laws, a surplus be transmitted to the principal and domiciliary representative, or otherwise transferred, so as to be held by him in such capacity for payment and distribution, he will become liable for it accordingly. "Whether, then, the principal or domiciliary representative be required, pro forma, or not, to include in his inventory assets which come to his knowledge, either situate in the state or country of principal and domiciliary jurisdiction, or out of it, his liability as to assets of the latter sort depends somewhat upon his means of procuring them, and the fact of an ancillary administration in the situs of such assets. In any case, he is bound to take reasonable means, under the circumstances, for collecting and realizing the assets out of his jurisdiction; nor is his liability a fixed, absolute one, but dependent upon his conduct, and it is getting the foreign assets into his active control that makes a domestic representative chargeable as for the property or its proceeds, rather than upon the duty of pursuing and recovering such assets. If assets situated in another jurisdiction come into the possession of the executor or administrator in the domiciliary jurisdiction, by a voluntary payment or delivery to him, without administration there, it follows that he should account for them in the domiciliary jurisdiction whose letters were the recognized credentials in the case. And it is held in several American cases, consistently with this rule, that, no conflicting grant of authority appearing, the domiciliary appointee of another state may take charge of and control personal property of the deceased in the state of its situs." See also Wilkins v. Ellett, 9 Wall. 741, and Van Bokkelen v. Cook, 5 Saw. 589. The authorities cited by appellant's counsel seem not incon AM. ST. REP., VOL. XXI. — 4 sistent with the above extract from Professor Schouler's work. None of them denies the duty of the domiciliary executor to gather in an account for the foreign assets to the extent of his conscious ability to do so, nor the consequent and corresponding authority of the court of the domicile to compel him to account for willful neglect to perform such duty. All the authorities agree that the residuum of the foreign assets must finally be collected and distributed by the domiciliary executor. 2. As to the disallowance of the three items of traveling expenses, it is to be observed that, as they pertained solely to the administration of the estate in Mexico, they should be paid from that part of the estate, and not from the estate in California. If those charged may be allowed here, why may not all the expenses of administration, both in Mexico and Spain, be charged to the California estate? I think the order appealed from should be affirmed. GIBSON, C., and HAYNE, C., concurred. The COURT.-For the reasons given in the foregoing opinion, the order appealed from is affirmed. Hearing in Bank denied. EXECUTORS AND ADMINISTRATORS — ANCILLARY ADMINISTRATOR. —For the law respecting ancillary administration, wherein is discussed the duty of the ancillary administrator to collect assets, pay debts and costs of ancillary administration, and distribute properly the residue in his hands, see extended note to Goodall v. Marshall, 35 Am. Dec. 483-490. A court of chancery may compel a foreign administrator or executor to account for the trust funds which he received abroad and brought with him into this state: McNamara v. Dwyer, 7 Paige, 239; 32 Am. Dec. 627, and note 632, 633. [IN BANK.] JAOKS V. JOHNSTON. [86 CALIFORNIA, 884.] EXECUTION, TERMINATION OF TIME FOR ISSUING, IN FORECLOSURE SUITS. If a statute limits the time within which execution may issue in cases for the recovery of money to five years after the entry of judgment, no execution can issue after that time under a decree foreclosing a mortgage, though it specially provides that no judgment shall be docketes for any deficiency should the proceeds of the sale be insufficient to pay the amount found due. T. I. Bergin, and Geil and Morehouse, for the appellant. MCFARLAND, J. In this case, an action was brought upon a promissory note for thirteen hundred dollars, and interest, and a mortgage given to secure it. Judgment in the usual form was rendered for plaintiff on March 29, 1879, except that, by stipulation, the decree provided that no judgment should be docketed for any deficiency if the proceeds of the sale should fail to satisfy the amount found due. On April 11, 1887, more than eight years after the entry of the judgment, plaintiff moved the court in due form to direct the clerk to issue a writ of execution for the sale of the mortgaged premises. The court denied the motion, and from the order denying the motion plaintiff appeals. The only question presented is, Can an execution issue on a judgment foreclosing a mortgage given to secure the payment of money, after five years from the date of the rendition of the judgment? The general rule, under section 681 of the code, is admitted to be that an execution cannot issue after five years; but it is contended by appellant that, under section 685 of the Code of Civil Procedure, which provides that "in all cases other than for the recovery of money, the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of court, upon motion," the court should have ordered an execution in the case at bar. This contention, however, was substantially determined against appellant by this court in Dorland v. Hanson, 81 Cal. 202; 15 Am St. Rep. 44. That was the case of a decree foreclosing a street assessment, and the court decided that section 681 must be held to apply to a judgment the object, purpose, and effect of which is to enforce the payment of money, whether the same be a personal judgment against the party indebted, or a decree foreclosing a lien for the amount due." This rule applies even more strongly to the case of a note and mortgage, where the latter is given to secure an express personal promise to pay money. With respect to the sections of the code in question, the mortgage is a mere incident to the debt. The cause of action could have been removed at any time before suit, by the payment of the amount of money due, and the judgment could have been satisfied in the same man. ner. We are asked to overrule Dorland v. Hanson, 81 Cal. 66 202, 15 Am. St. Rep. 44, which we decline to do. The court properly refused to order the execution. Order appealed from affirmed. LIMITATION - EXECUTION. Sections 681 and 685 of the Code of Civil Procedure of California, relating to the time within which executions may be issued upon judgments, are construed in Cortez v. Superior Court, 86 Cal. 274, ante, p. 73; Dorland v. Hanson, 81 Cal. 202; 15 Am. St. Rep. 44. PRACTICE REINHART V. Lugo. [86 CALIFORnia, 895.] ORDER SETTING ASIDE DEFAULT and a JudgMENT THEREON, supported by an affidavit of merits, will not be interfered with by an appellate court, unless it was made without jurisdiction or is an abuse of discretion. SHERIFF AND DEPUTY. ACT OR RETURN OF A DEPUTY is a nullity unless done in the name and by the authority of the sheriff RETURN OF SERVICE OF SUMMONS signed by a person without adding any official title or designation, and not sworn to, is a nullity, and cannot be validated by proving that he was in fact a deputy sheriff. JUDGMENT BY DEFAULT ENTERED BY A CLERK IS VOID WHEN he is not authorized to enter it by statute, as where he acted upon a return of the service of summons not sworn to nor appearing on its face to be an official act. JURISDICTION. IF THE PROOF OF SERVICE OF PROCESS IS NOT MADE AS REQUIRED BY LAW, the court acquires no jurisdiction over the person of the defendant and has no authority to render judgment against him. PRACTICE. UPON FILING AN AMENDED COMPLAINT in a suit for partition, bringing in new parties under an allegation that they have or claim an interest in the subject-matter of the suit, all defaults previously entered, based upon the original complaint, must be regarded as vacated, and the amended complaint must therefore be served on all parties, whether they are in default as to the original complaint or not. JURISDICTION, THE FINDING OR RECITAL OF DUE SERVICE OF PROCESS is not conclusive when the proof of service is a part of the judgment roll, and, as it appears in such roll, is not sufficient evidence of such service, as where it is not sworn to nor does it appear to be certified by any officer as his act. JUDGMENTS. MOTION TO VAcate a JudgmeNT on the ground that it is void is not a collateral but a direct attack. PRACTICE. - REVERSAL OF A JUDGMENT IN PARTITION, 80 far as it affects plaintiff's right to have partition of certain designated tracts of land, though it is affirmed in all other respects, vacates the whole judgment as 'to those tracts, and as to them releases all the parties to the action from the operation thereof. JUDGMENT BY DEFAULT WHEN THE PROOF OF THE SERVICE OF SUMMONS 18 DEFECTIVE IS VOID, and a motion to vacate it cannot be successfully resisted by proving that the summons was in fact properly served. Such proof cannot operate by relation to make valid a judgment void when it was entered. Wicks and Ward, for the appellant. Howard and Robarts, John D. Bicknell, and Finlayson and Finlayson, for the respondents. Fox, J. This is an appeal from an order setting aside the default, and judgment thereon, entered against the defendant Antonio Maria Lugo, and permitting him to answer in the cause. This court will not interfere with the action of the court below in making such an order as that appealed from in this case, where, as here, it appears to have been made upon affidavit of merits, unless it affirmatively appears that the court was without jurisdiction to make, or abused its discretion in making, the order. The action was for partition of several parcels of land, designated, respectively, as A, B, C, D, and E. There were several defendants in the first instance, and by amendment subsequently made, several others were brought in as defendants. Respondent Antonio Maria Lugo was one of the original defendants, and plaintiff, in his complaint, which has never been amended in that particular, avers that the respondent claims some segregated interest in that portion of the lands sought to be partitioned, and designated as tract A, the exact nature and extent of which is not accurately known to plaintiff; and in another and prior portion of the complaint he alleges that he and the defendants named, of whom the respondent is one, "hold and are in possession, and are the owners and tenants in common, as hereafter set out," of the several tracts of land designated as above stated. A certificate headed "Office of the sheriff, Los Angeles County, California," and dated May 14, 1885, is indorsed upon the alias summons, reciting that the respondent was served, by delivering to him a true copy of said summons, at the county of Los Angeles, on the 14th of April, 1885, and is signed M. G. Aguirre." This is not made as, and does not purport to be, an affidavit of service. Aguirre was not the sheriff of the county, and if he was deputy sheriff, or acting as such, as is now claimed, the fact is entirely immaterial. As proof of service, the certificate was and is void. "The act and return of a deputy is a nullity, unless done in the name and by the authority of the sheriff": Joyce v. Joyce, 5 Cal. 449; Rowley v. Howard, 23 Cal. 403. The certificate being a 66 |