98 Cal. 247 | Cal. | 1893
This is an appeal from the judgment and also from the order of the trial court denying a motion to set aside the default and judgment taken against the appellants, John L. Koster and H. Blagemann.
1. The appeal from the judgment is based upon the contention that the original .complaint did not state a cause of action. Conceding for the purposes of the case that the original com
2. It is insisted that the judgment should be set aside because appellants were not served with summons. The evidence upon this point is full and conflicting, and upon that evidence the trial court denied the motion to set aside. The contentions of the respective parties in this regard created a pure issue of fact, and upon that conflict of evidence the court found that service of summons had been made, and there being sufficient evidence to support the finding, we will not disturb it. While it is said in Buell v. Emerick, 85 Cal. 116: “The power of the court should be freely and liberally exercised .... so as to dispose of cases upon their substantial merits,” that language of the court has no reference to the question here involved. This is not a matter of discretion in the lower court, but a matter of pure legal right, and does not arise under the provisions of section 473 of the Code of Civil Procedure. (See Norton v. A. T. & S. F. R. R. Co., 97 Cal. 388.)
3. It is insisted that the judgment is void because the amended complaint upon which the judgment was based was never served upon appellants. This objection to the validity of the judgment involves the authority of one W. C. Burnett, an attorney-at-law, to represent appellants in the litigation; for subsequently to the filing of the amended complaint, Burnett appeared' in court claiming to represent appellants, and attacked the pleading both by motion and demurrer, and his appearance for such purpose was a waiver of personal service thereof, either upon him or his clients. Was Burnett authorized to represent appellants in this litigation? The trial court has so found the fact, and it is only upon a clear case to the contrary that we would disturb that finding. If the original com
4. Appellants and others were sureties upon the official bond of one Hubert, treasurer of the city and county of San Fran
For the foregoing reasons the judgment and order are affirmed, and this order is directed to be entered as of date May 1, 1893.
Harrison, J., and Paterson, J., concurred.
Hearing in Bank denied.