172 P. 981 | Cal. | 1918
Lead Opinion
In this action plaintiff sued to set aside a judgment against her in favor of J.E. Morris made on October 5, 1911. The ground assigned in her complaint for setting aside said judgment were that the same was rendered upon service by publication only and that the order for the publication of summons was procured without filing any affidavit showing that the said Gladys M. Clarkin, defendant in said action, resided out of the state of California, or had departed from the state of California, or could not, after due diligence, be found within the state of California, or that she had concealed herself to avoid the service of summons, and that said Morris, plaintiff in said action, falsely represented *104 to the court that such affidavit had been made and thereby obtained said judgment. The defendant alleged that he had obtained the order for publication by means of an affidavit presented to the court at the time the same was obtained, and that the publication was made in pursuance of the order made upon such affidavit, and he denied that he had fraudulently represented to the court at the time the judgment was given that the order for the publication of summons had been procured otherwise than upon said affidavit. The affidavit itself is referred to and made a part of the answer, and it was also introduced in evidence. The only question presented in the case is the sufficiency of the affidavit to sustain the order for the publication of summons.
The affidavit purported to state a case for the publication of summons on the ground that defendant could not after due diligence be found within the state, as provided in section
The rule regarding the sufficiency of affidavits for publication when attacked collaterally is clearly set forth in the language of Mr. Justice Harrison in Rue v. Quinn,
The judgment is reversed.
Richards, J., pro tem., and Sloss, J., concurred.
In denying a hearing in Bank, the court filed the following opinion on May 10, 1918:
Addendum
The respondent urges, in her petition for a bearing in Bank, that the Department failed to pass upon her contention that the former judgment against her had been obtained by fraud. It is true that the complaint alleged, and the court found, the existence of a state of facts which, under the rule declared inDunlap v. Steere,
The petition for hearing in Bank is denied.