108 P. 878 | Cal. Ct. App. | 1910
This is an appeal from an order vacating and setting aside a default judgment entered against defendant as damages for an unlawful and malicious attachment.
The action is purely a personal one, and was brought in October, 1906. The defendant is a foreign corporation, organized and existing under the laws of the state of Illinois. It had never filed in the office of the Secretary of State of this state a copy of its articles of incorporation, or a designation of an agent upon whom process might be served, as is required by the statute of this state of all foreign corporations doing business in the state. (Civ. Code, secs. 405, 408.)
Service of summons was made upon defendant by serving a copy of the summons and complaint upon the Secretary of State.
Upon the sixteenth day of November, 1906, a judgment, upon default, against defendant for the sum of $25,000 was signed by the judge of the court and filed with the clerk. On the seventeenth day of May, 1907, just six months and one day after the rendition of the judgment, the defendant specially appeared in the action for the purpose of its motion only, and gave and filed a notice of motion to vacate and set aside said judgment upon the ground that the court never obtained jurisdiction of the defendant, in that no service of summons, as required by law, had been made on defendant, and that it had never appeared in said action or submitted itself to the jurisdiction of the court. Upon the hearing the court granted the motion, and it is from this order that the plaintiff has appealed. At the hearing the court *61 allowed defendant to read in evidence an affidavit served with the notice and other affidavits replying to affidavits read by plaintiff. From the affidavits read by defendant it appears that defendant was not at the time of bringing the action, and had not for over a year prior thereto, or since, been engaged in business in the state of California, nor had it at that time, nor for over a year prior thereto, nor since, any officer, managing or business agent, cashier or secretary, officer, representative, or agent in said state of California.
In other words, the facts disclosed by these affidavits show that service of summons on this defendant could not be had in this action by service of such summons on the Secretary of State, and in consequence the judgment is void. We do not understand that this is disputed by appellant. Its contention is that the motion came too late to permit the use of proofaliunde the judgment-roll to show its invalidity for want of jurisdiction over the defendant, in that the motion was made more than six months after the judgment was taken. The record does not disclose when the judgment was entered other than the notice of the motion recited that the judgment was entered on the seventeenth day of November, 1906; but if the date of its entry be important, we would assume as against an appellant, upon whom the burden of showing error lies, and in support of the order of the trial court, that the entry was within six months preceding the notice of motion.
The fallacy of appellant's position lies in the assumption that the time within which a motion to set aside a judgment void in fact, but not so appearing upon the judgment-roll, is limited by section
We have examined all the cases cited by appellant as well as all those cited by respondent upon this point, and we are of the opinion that the result of the decisions is that a motion to vacate a void judgment, not appearing to be such upon its face, must be made within a reasonable time. So much has been authoritatively settled. But in none of the cases has it been decided whether the time shall run from the rendition of the judgment or from the entry thereof. In none of the cases has it been necessary to fix precisely what is a reasonable time. It being established that the motion may be made within a reasonable time, it would seem to follow on principle that what is a reasonable time, in the absence of a statutory limitation, should be largely left to the determination of the trial court. We have just said that in none of these cases has it been necessary to fix precisely what is a reasonable time for such a motion as this. Norton v. Atchison etc. R. R. Co.,
It is thus apparent that it was only decided in that case as to the time of such motion that it must be made within a reasonable time, and that ten days was such reasonable time. The suggestion that the time fixed by section
In People v. Temple,
Whether or not the exact time limited for motions under section
When this case is carefully read in the light of its facts it will be seen to only authoritatively decide that such a motion as was there involved must be made within a reasonable time, and that twelve years after the entry of judgment is not a reasonable time.
People v. Harrison,
People v. Norris,
On the other hand, there are expressions in cases to the effect that the time runs from the entry of the judgment. But in none of the cases was any point being made as to whether or not the time should be counted from the rendition or entry of the judgment.
So, too, in none of the cases cited on either side was it important for the court to fix accurately what should be the maximum limit for a reasonable time within which a motion to vacate a judgment, void in fact but not so appearing on the record, must be made. In no case did the time involved approximate near to six months, either from the rendition or entry of the judgment. The fundamental rule recognized in all the cases is that such motion must be made within a reasonable time. That is as much as has been authoritatively decided.
The section of the code relied on by appellant does not deal with the matter of vacating void judgments at all.
In the state of the authorities on the subject we are not prepared to say that a motion made six months and one day after the rendition of a judgment, void in fact, is not made *65 within a reasonable time, or that the court had no power under such circumstances to vacate such judgment upon proofdehors the record that the court never obtained jurisdiction over the person of the defendant.
The order is affirmed.
Kerrigan, J., and Cooper, P. J., concurred.