115 P. 254 | Cal. Ct. App. | 1911
This action was brought to recover the sum of $9,190.30, alleged to be owing by defendant corporation upon various claims, for merchandise furnished, money advanced and services rendered, all of which were assigned to plaintiff prior to the bringing of suit. No answer having been filed on the part of defendant, judgment was entered against it by default. Service of summons in the action was made upon John A. Gerner, president of defendant, in the city of Los Angeles on November 30, 1908. On May 19, 1909, judgment was rendered. A motion was presented on September 13, 1909, by defendant, whereby it asked to be relieved from its default and allowed to answer on the ground of inadvertence and excusable neglect, and the further ground that the judgment was entered without jurisdiction. An appeal is taken from the order denying that motion.
From the affidavits used on the hearing of the motion, it appears that at the time of the service of summons Gerner was the president and a large stockholder of defendant corporation; that his holdings of stock, together with those of relatives and friends, made up a large majority of the shares issued; that when served with summons as president of the corporation, Gerner believed that the claims sued on were all justly due, and for that reason did not formally call the matter to the attention of the board of directors and caused no defense to be made in the action. It further appeared that at the time the suit was commenced the corporation was not actively engaged in business, and that no regular directors' meetings were being held. On the part of defendant, affidavits were submitted in which a considerable portion of the alleged indebtedness was denied to be owing, and it was then set out that Gerner had not only failed to inform the board of directors of the fact of the bringing of the action, but that he had concealed information of the pendency of the same from the board of directors, and that a defense would have been interposed had the directors been apprised of the fact that the corporation had been sued. An affidavit of merits sufficient in form and substance was filed by defendant and, over its objection, counter-affidavits were allowed to be filed thereto. In its order denying the motion to vacate the judgment, the court recited that the motion was denied "on the ground that there appears to the court to be no surprise, *472
excusable negligence, or inadvertence on the part of defendant." The decisions, cited in support of appellant's contention that such error was committed by the court in allowing the counter-affidavits on the question of merits to be filed as to require that its order be reversed, are not applicable to this case. It is unquestionably established that if a party applying to the court to be relieved from the results of his default, under section
It is next contended that under the showing of excusable neglect, as made, defendant was entitled to have the judgment vacated and leave granted it to answer. Before an appellate court is authorized to disturb an order, made upon a motion to set aside a judgment under the provisions of section
We now reach the third point urged as a reason why the motion to vacate the judgment should have been granted: It is insisted that the superior court of Kern county had no jurisdiction over the subject matter of the action, nor of the defendant corporation. Section 16, article XII, of the constitution of California is cited in support of this claim. That section provides as follows: "A corporation may be sued in the county where the contract is made or is to be performed, or where the obligation or liability occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases." At the time this action was commenced defendant had its principal place of business within the city of Los Angeles, and it may further be said, or at least assumed, that the record sufficiently shows that defendant did not agree to satisfy any of the obligations sued upon in the county of Kern, and that it did not there contract for the performance or furnishing of any of the things which were furnished or performed by plaintiff's assignors. If, under the section quoted of the constitution, the term "may be sued" is to be interpreted as though it read "must be sued," then there would be no escape from the conclusion which defendant's counsel urges, to wit, that this action was wrongly brought in a county where defendant corporation could not be sued, and hence that the judgment was rendered without jurisdiction. This precise question has been before our supreme court and very fully considered in several decisions. In these cases it has been held that section 16, article XII, is permissive in its effect; that it is intended to give to a plaintiff the right to choose which of the counties he will prosecute his action in, and that having chosen one of the counties enumerated, if it perchance happens to be one within which the principal place of business of the corporation is not *474
located, the corporation sued cannot secure a change of place of trial on the ground that the action is not brought in the county of its residence. It is distinctly held that this constitutional provision does not deprive the superior court of any county of the state of jurisdiction to hear and determine all classes of actions generally, within the limits of its jurisdiction as defined in another article of the constitution. (Fresno National Bank v. Superior Court,
The order appealed from is affirmed.
Allen, P. J., and Shaw, J., concurred.