97 Cal. 388 | Cal. | 1893
Lead Opinion
This is an appeal by plaintiff from an order of the superior court granting a motion of defendant to quash the service of summons, to set aside and vacate the default of defendant, and to set aside and vacate the judgment which had been entered in the case In favor of plaintiff. The appeal was heard in Department Two, and the order of the court below was there, upon an opinion prepared by Belcher, C., affirmed. (Post, p. 394.) Upon a petition by appellant, urging strongly that there was no authority in the court to grant said motion, a hearing was ordered in Bank. After a further and full consideration of the point made, we are satisfied that a correct conclusion was reached in Department.
The respondent is a corporation formed under the laws of Kansas, and having its principal place of business in and being a resident of that state. The action, which is in personam, was commenced in San Diego County, and the sheriff of that county returned that he had personally served the summons, on the 19th of November, 1890, on K. H. Wade, general manager of defendant, “ by delivering to said defendant, personally, in the county of San Diego, a copy of said summons,” etc. No appearance having been made by respondent within ten days, its default was entered by the clerk on the first day of December, 1890. On the third day of December, 1890, judgment was entered by the court against defendant, the judgment reciting that defendant had been regularly served with summons. Within ten days thereafter, to wit, on December 12, 1890, respondent, by its attorneys, served and filed a notice that “ the defendant in the above-entitled action will appear for the purpose of this motion only, and for no other purpose, and will move the court to set aside and recall the execution heretofore issued in this case,
It is contended strenuously by appellant that such a motion can be maintained only when based upon section 473 of the Code of Civil Procedure; that this motion is not based upon that section, and is not accompanied by any affidavit of merits, which affidavit has been held to be necessary when proceeding under the section; and that, under that section, a party can be relieved only upon an offer to appear and plead to the merits. Appellant relies, on this point, upon People v. Harrison, 84 Cal. 608; People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448; People v. Goodhue, 80 Cal. 200; and some other cases cited. But the cases cited go no further than to hold that a motion to vacate a judgment cannot be made after the expiration of six months, or with respect to one ground for setting aside the default, after one year, unless it be void on its face. The recent case of Jacks v. Baldez, 97 Cal. 91, might also be cited in support of what appellant deems to be the correct position. But those authorities relate to cases which come clearly within, or should have been brought under, the provisions of said section 473. The main provision of that section is, that a court may relieve a party from a judgment taken against him “through his mistake, inadvertence, surprise, or excusable neglect”; and it is quite clear that the provision just quoted has no application to the ground upon which respondent moved in the case at bar. Defendant here is not asking relief
In Freeman on Judgments, commencing at paragraph 105, there is a chapter on “Vacating judgments under statutes,” and various statutes of different states, similar to section 473 of our code, are reviewed, and the distinction between proceedings under those statutes and proceedings independent of them is stated; and in paragraph 108 the author says; “In all cases an affidavit of merits must be made and filed, except where it appears that the court had never acquired jurisdiction of the moving party, and that its judgment against him is void; but in this class of cases he is entitled to relief, independently of those statutes.” In Bell v. Thompson, 19 Cal. 707, the court makes this same distinction (section 68 of the Practice Act being at the time of that
Appellant contends that there should have been an independent action brought to set aside the judgment, but we do not think so. The general common-law rule is, that courts have power over their judgments during the entire term at which they are rendered, and may vacate them on motion. (Freeman on Judgments, secs. 90 et seq.) Many of the courts have vacated judgments after the expiration of the term; but it was established-in California that such jurisdiction was exhausted at the close of the term, unless kept alive by some motion or appropriate proceeding during the term. (Bell v. Thompson, 19 Cal. 706; Shaw v. McGregor, 8 Cal. 521; Robb v. Robb, 6 Cal. 21; Baldwin v. Kramer, 2 Cal. 582.) Under our present system, terms of court are abolished, and a motion to set aside a judgment would have to be made within a reasonable time (People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448); and perhaps, following the analogy of section 473, six months might be considered the extent of. a reasonable time for any motion; but however that may be, there is no question in the case at bar as to reasonable time, because the motion was made within ten days after the judgment. It is admitted" that a motion to vacate a judgment is a direct and not a collateral attack; and if, as we hold, a motion was the proper proceeding in this case, of course any
We hold, therefore, that, where a non-resident has not been personally served within the state, the court has power, within a reasonable time, when it finds that it has been deceived by a false return of such service within the state, to quash the service of summons and vacate the judgment. This is as broad a statement of the rule as the facts of this case require. And so holding, we think that the order of the court below should be affirmed.
With respect to the question of fact, whether or not the respondent in the case at bar was served within the state, the evidence before the lower court was conflicting, and we would not be warranted in disturbing the finding of the court as to that fact. Upon this point we are satisfied with the said opinion prepared by Commissioner Belcher in Department.
The order appealed from is affirmed.
Paterson, J., De Haven, J., and Harrison, J., concurred.
Concurrence Opinion
Before terms of court were abolished, it is clear that a default judgment entered upon a false return of personal service of summons could have been set aside upon motion made within the term. The abolition of terms cannot be held to have abolished the remedy by motion, but only the limitation of time within which the motion must be made; and if, under section 473 of .the Code of Civil Procedure, a defendant may be relieved on motion from a default
None of the decisions cited are in conflict with this view. They merely hold that judgment will not be vacated upon motion made after the lapse of the prescribed period, unless it is void upon its face, which is quite consistent with the proposition that a motion made within the statutory period may be granted as well when the defendant is wholly without fault as when he has been guilty of neglect, mistake, etc.
As to the conditions upon which the order should be made, the statute only requires the imposition of such terms as may .be just; and when, as in this case, the court finds that the defendant has never been brought within its jurisdiction, it would not be just to require it to answer to the merits, or to make an affidavit of merits.
Upon these grounds, I concur in the judgment.
The following is the decision, above referred to, rendered in Department Two, by Mr. Commissioner Belcher, July 30, 1892: —
This is an action to recover the value of two horses which were delivered by plaintiff to defendant, at the town of Hiawatha, in the state of Kansas, to be transported to the town of Escondido, in the state of California, and which were killed while in transit over the defendant’s railroad to their place of destination. The complaint is in the usual form, and alleges negligence in the management of the engine and train of cars as the cause of the killing. The complaint was filed in the superior court of San Diego County, and a summons was thereupon issued and placed in the hands of the sheriff of that county. By his return on the summons, the sheriff certified that he “personally served the same, on the nineteenth day of November, 1890, on K. H.
1. Appellant contends that the judgment of a court of general jurisdiction imports'absolute verity, and that, on a motion, like this, to set aside a domestic judgment, the parties to it are estopped to deny the jurisdiction of the court, unless its want of jurisdiction appears on the face of the record; that here the recitals in the judgment that the defendant had been personally, legally, and regularly served with process conclusively show that the court had acquired jurisdiction of the person of defendant, and that no evidence outside the judgment roll was admissible to contradict hc..e recitals, and hence that it was error to admit in evidence the affidavits offered by defen dam and objected to by plaintiff. This position cannot, in .our opinion, be sustained. The code provides that “ any judicial record maybe impeached by evidence of a want of jurisdiction in the court or judicial officer,” (Code Civ. Proc., sec. 1916,) and the only question is as to the method of procedure to effect the impeachment. The .rule invoked is well sustained by the authorities, where a collateral attack is made upon a judgment, but it has no application to a direct attack. Here the motion to set aside the judgment was a direct, and not a collateral, attack, as has been held in numerous cases decided by this court. (People v. Mullan, 65 Cal. 396; People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448; People v. Pearson, 76 Cal. 400; Reinhart v. Lugo, 86 Cal. 395; 21 Am. St. Rep. 52.) In Lyons v. Roach, 84 Cal. 30, it is said that “the main difference between collateral and direct attacks is, that in the former the record alone can be inspected, and is conclusively presumed to be correct; while on direct attack the
2. Appellant further contends that the decision of the court was not justified by the evidence, and that the order should be reversed for that reason. Section 411 of the Code of Civil Procedure provides that “the summons must be served by delivering a copy thereof, as follows: . ... 2. If the suit is against a foreign corporation . . „ . doing business and having a managing or business agent, cashier, or secretary within this state, to such
The only question, then, is, Was Wade the managing or business agent, cashier, or secretary of the defendant when the summons was served on him? If he was not, then the attempted service did not give the court jurisdiction of the person of the defendant, and its judgment was void. Whether he was such agent or not was a matter to be determined by the court below, in view oi all the evidence introduced at the hearing of the motion. The court, as we have seen, decided the question against the theory of appellant, and we do not think its decision can be disturbed. The evidence was conflicting, but a clear preponderance of it seems to sustain the decision.
It is further objected that no sufficient affidavit of merits was filed. We do not think it necessary to pass
Vanclief, C., and Haynes, C., concurred.