226 P. 972 | Cal. Ct. App. | 1924
This appeal is from an order denying the motion of defendant R. J. Biaggi, substituted as defendant for George Biaggi, "to quash the service of summons" on the latter and "to set aside and vacate the default and judgment against" him. The court ordered service of summons by publication upon George Biaggi. In lieu of such publication, he was personally served with a copy of the summons and complaint in the state of Arizona, which service, under the provisions of section 413 of the Code of Civil Procedure, "is equivalent to publication and deposit in the post-office." The only question presented by the appeal is whether the affidavit for publication is sufficient. The affidavit reads as follows:
"L. L. Dennett, being duly sworn, deposes and says:
"That he is an attorney at law, residing at Modesto, in the County of Stanislaus and State of California; that he is personally acquainted with W. R. Biaggi, the brother of George Biaggi, defendant above named: That he was the attorney for W. F. Ramont in a suit in the Superior Court of the County of Stanislaus and State of California, in which George Biaggi was plaintiff and W. F. Ramont was defendant, and W. R. Biaggi was attorney for said defendant, which said case is now on appeal from the judgment of the Superior Court of the County of Stanislaus and State of California; that he has corresponded with W. R. Biaggi, the brother of said George Biaggi, and was informed by him that said George Biaggi was out of the state in a hospital, and that the summons and complaint in the above-entitled action was sent to the Sheriff of the County of Santa Clara, State of California, which was the county of the former residence of said defendant, George Biaggi, with instructions to serve the said summons and complaint upon said George Biaggi, but that the said summons and copy of summons and complaint were returned by the said sheriff with a statement by H. A. DeLacy, Under Sheriff, that said George Biaggi is in a hospital at Tucson, Arizona, and that the said sheriff was so informed by the brother of said George Biaggi, to wit, by W. R. Biaggi, and that affiant is informed and believes, and so states the fact to be, that said George Biaggi does not reside in the said State of *780 California, but now resides out of the State of California, and that his present address is Tucson, Arizona.
"Affiant further states that he has read the complaint on file herein, and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated on information or belief, and as to those matters that he believes it to be true."
[1] It is contended that the affidavit was insufficient because, in so far as appears from the record, it was made by a stranger to the action. It is only required that the necessary facts appear "by affidavit to the satisfaction of the court, or a judge thereof." (Code Civ. Proc., sec. 412a; Rue v. Quinn,
[2] It is urged that affiant's statement that George Biaggi's residence was in Tucson, Arizona, was insufficient because made on information and belief. The contention is without merit. (Rue v. Quinn, supra.) As a general rule it would be impracticable to state the place of residence of a person in another state except on information and belief. Affiant showed due diligence in acquiring information upon which to base his belief. "Oftentimes affiant's knowledge of matters stated in his affidavit must of necessity rest upon information derived from others, and where this is the case it is generally sufficient if he aver that such matters are true to the best of his knowledge and belief." (2 C. J. 355.)
[3] It is argued that the affidavit does not show that a cause of action existed against George Biaggi. The complaint was not verified. Affiant, however, "states that he has read the complaint on file herein, and knows the contents *781
thereof, and that the same is true of his own knowledge, except as to those matters therein stated on information or belief, and as to those matters that he believes it to be true." The only allegation of the complaint relative to George Biaggi which is stated on information and belief is to the effect that he had or claimed some interest in the land described in the complaint. In Ligare v. California S. R. R. Co.,
[4] The affidavit does not show that George Biaggi had not filed the certificate of residence provided, for by section 1163 of the Civil Code. The statute, however, requires such showing only "where service is sought to be made upon a person by publication upon the ground that he cannot, after due diligence, be found within the state. The order for publication of summons is based upon the ground, as stated therein, "that the said defendant resides out of the state, and is now a resident of Tucson, Arizona." It was not necessary, therefore, for the affidavit to state that no certificate of residence had been filed.
The motion to vacate the judgment appears to be without merit from either legal or equitable considerations. George Biaggi was personally served on the nineteenth day of September, 1921. His default was not entered until February 1, 1922. Judgment was thereupon entered and pursuant *782 thereto the property in controversy was sold by the sheriff February 25, 1922. December 30, 1922, notice was filed stating that the motion would be made on the eighth day of January, 1923.
The order is affirmed.
Plummer, J., and Hart, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 26, 1924.
All the Justices concurred.