130 P. 865 | Cal. | 1913
At the time of the hearing of this cause in Bank a motion of the respondents to amend the record on appeal by inserting therein a copy of the verification of the complaint, showing that it was duly verified, was granted, but the clerk failed to enter the order in the minutes. The verification must now be deemed a part of the record. This makes it necessary to determine questions which were not considered by the court in Department in its decision upon which a rehearing was granted. *26
The appeal is from an order of the trial court denying the motion to vacate the judgment against and open the default of the Tehama Mining Company upon the ground that it had never been served with summons in the action. The moving party is L.R. Barthelet, who by affidavit shows that the Tehama Mining Company sold and transferred the Donkey Mine, the real estate in controversy, upon which it is sought to impose a lien, to W. Henry Jones after the commencement of the action; that W. Henry Jones died and that after proceedings duly had and an order duly made, the affiant Barthelet was appointed executrix of the last will of said Jones and ever since has been such executrix. These allegations of interest are not controverted or disputed and they sufficiently connect Mrs. Barthelet with the action to authorize her to appear and prosecute the motion (Code Civ. Proc., sec. 385).
The Tehama Mining Company is a domestic corporation, and constructive service of the summons by publication was made under an affidavit to the effect that there is no president or other head of the corporation, no secretary, no cashier and no managing agent of the corporation within the state of California; that these officers had departed from the state and cannot after due diligence be found within the state of California.
The first question presented by the appeal is the claim that the law does not authorize the publication of summons in the case of a domestic corporation; that section
We think this question is settled by the decision in Douglass
v. Pacific M.S. Co.,
Section 29 of the Practice Act, so far as here applicable, then provided as follows: "The summons shall be served by delivering a copy thereof attached to a certified copy of the complaint, as follows: 1st. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier or managing agent thereof."
Section
This case is conclusive as to the meaning of the word "persons" in section
There is a suggestion in the appellant's brief that the service is void because the affidavit for the order of publication does not state facts showing that due diligence was used to find the officers and agents of the Tehama Mining Company upon whom service could lawfully be made. If the only cause for publication shown by the affidavit was that such officers *29 could not be found within the state, after due diligence, this question would be necessarily involved. But, as will be seen, the affidavit states another sufficient cause. Therefore it is unnecessary to consider the question of diligence.
Section
It is true, as stated, that a domestic corporation is deemed to have a legal residence in this state, although it may do no business at all and all its officer, agents and stockholders may reside out of the state. being a legal resident for many purposes, it seems anomalous to say that it may depart from the state, but we think under the provisions of the code, properly construed, it may be so held. Our courts have jurisdiction of civil actions and this includes power to bring before *30
them, or in some reasonable way to give proper notice to, the parties whose rights and interests are to be determined. A wronged person must have a remedy which he can enforce. Doubtless if there were no enabling statutes prescribing a process to be used, the courts, being vested by the constitution with jurisdiction of civil actions, could frame suitable writs and direct a reasonable mode of service. Section
The order appealed from is affirmed.
Angellotti, J., Melvin, J., and Lorigan, J., concurred.
Rehearing denied. *31