*1 778 R II. etc. Co. Hebron v. Westside Second No. 1107. Respondent, COMPANY, Corporation, R. H. HERRON v. Corporation, WESTSIDE ELECTRIC COMPANY, al., Defendants; et KERN RIVER AND MINING POWER COMPANY, Corporation, Appellant. Foreign Corporation—Unauthorized by Default—Doing in Business State not Shown—Service of Summons Pres- foreign corporation, ident.—In where the com- by is shows it authorized corporations, charter in judgment to own stock statutory liability as a stockholder in cor- state, poration organized under the of this neither but where nor the affidavit of summons state, shows that is business agent, managing state, upon cashier or had a within the made, sup- whom service of summons can be it was insufficient to default, port judgment by a clerk’s under section 411 of the Code Procedure.
of Civil Ownership Corporation— of Shar.es in Domestic Id.—Effect “Doing “Manag- Business not State”—President Presumed ing Agent.”-—-If ownership it be conceded that the effect of the foreign corporation in corporation, organ- domestic state, laws of this ized under the constitutes a business” corporation state, foreign it does not follow president who is served with summons to he the shall he of sueh Entry Judgment—Ministerial Duty—Pre- of Default Id.—Clerk’s Indulged.—Where sumption judg- a default of Other Proof not clerk, presumption there is no such judgment sueh a would attend ordered proof as the court. The judgment by duty ministerial, clerk’s judicial not Long Perfecting Appeal Id.—Supplemental Filed After Affidavit of Record.—A filed No Part constitutes no of the record to which perfecting entitled look in determining appellate record. presented the Superior Los APPEAL Court of County. Moss, Leon P. Angeles are stated facts E. Hebron Co. Westside H. May, 1912.] etc. Sanders, Appellant.
S.S. O’Melveny, Millikin, & and Walter K. Stevens Tuller, Respondent.
JAMES, J. Kern This taken defendant Mining Company River Power
against re default. Plaintiff the to instituted against of Company cover the Westside Electric various sums money for other vendors merchandise sold it and several assigned plaintiff claims to prior whose were commence against appellant of the action. was liability of upon statutory its of stock as holder of shares complaint Company. In it was the Westside Electric the alleged appellant that corporation organized awas and exist ing under the of territory the of Arizona and authorized for, articles of incorporation to subscribe own and corporations. alleged ap hold stock It was not' that pellant doing the state of California at the time of service or at all, the had man aging agent, cashier, secretary or within state. The affi this purporting davit service summons recited that the show twenty-ninth making day person had “on service August, '1910, personally upon served summons in said action Mining Company, Kern and Power in said defendant River county Angeles, of Los state California, by then and there delivering leaving to and with Shippe, H. C. an officer of said defendant, wit, president thereof, personally, another separate copy of said summons annexed another and copy of the separate said Among action.” by appellant urged contentions it is affidavit was confer to enter the judgment. Section Code of Civil pro Procedure how summons be served in vides must order that be foreign corporation. Subdivision 2 of that “2. If reads follows: the suit section joint company or nonresident corporation, stock or associa having a business and tion, or business agent, state; or within this cashier, agent, cashier, secretary.” It appear was not made to or either in the com or plaintiff the affidavit person of the making appellant summons that service at time such sum- App. v. Westside etc. Cal. 780 E. H. [18 Hereon engaged any busi president, mons was served state California, or ness the state whom secretary upon agent, cashier, or managing or business Simonds made. Jameson v. of summons could be service a like 289], where Co., Pac. Saw pro “Under consideration, the court said: was under get may juris section, in order that the court visions of this that such requisite it is diction over ‘doing the state at business’ within corporation shall be served, that the service shall be time the summons business, or managing that who is might said though it here be secretary.” Even cashier attempted at time appellant was that because large number the holder of of summons corpora Company, of Westside Electric a California stock meaning of tion, it' was then business” within to, still it does not of the code referred the section who follow that the means process with within this state shall is served *3 or business be the to show of service was opinion,
In our authorize had requisite jurisdiction been that the judgment. entry of the default judgment is reversed. The Shaw, J., Allen, J.,P. concurred. rehearing denied of this cause was petition
A May 31, 1912, following appeal on and the court of district thereon: then rendered The argument by respondent in THE COURT. rehearing pertinent the default would be petition from judgment appealed been one which was entered all of case it would be necessary had been facts as to the service of summons made to here exhibited shows that appear. judgment-roll The judgment upon an insufficient affidavit of service clerk entered any there and we cannot assume that duty proof The clerk’s made of such service. judicial in its and not judgment is a ministerial one per- after affidavit filed The Craycroft May, 781 1912.] Court. proper fecting appeal can constitute no determining the look in record to which we are entitled to presented. Rehearing is denied. supreme court, petition
A cause heard in the have the after district court of denied 28, supreme court on June 1912. No. 1119. Second CRAYCROFT, Petitioner, FRANK v. SUPERIOR Jr., CALIFORNIA, THE OF OF IN AND COURT STATE KERN, THE COUNTY OF and HON. J. W. FOR Respondents. Judge Superior Court, MAHON, of Said Lands—Limitation Time State School for Contest—ITve Tears provisions of Certificate.—Under of section Issuance from Code, 13, 1911, superior of the Political amended March divested of hear and determine a contest filed, lands, heard, contest shall determined, unless such for state allowed, years within five from referred the date purchase may such certificate of have been which issued. provisions Amendment Retroactive.—The of section Id.—Code in 1911 Code as amended are expressly Political applicable cases; clearly expressed and there is a to all intention that that sec- retroactively, previously act and bar all should tion issued certifi- unless heard and determined within five cates the date issuance of the certificate. application mere pur- chase, payment money, vests rights no in the applicant, impair cannot be said that section obligation of any con- tract, or to be destructive vested rights or interests. Superior Court—Prohibition—Remedy Id.—Want Jurisdiction Prohibiting Appeal—Adequacy-—Discretion Court.—Since superior court is hear divested and determine *4 purchase lapse a contest of a certificate of five daite, prohibition a writ of will lie to restrain it from exer- jurisdiction, cising notwithstanding possible such remedy by appeal whether, jurisdiction. from its remedy adequate matter within -the sound discretion of the granting the writ. prohibition APPLICATION writ Mahon, County W. Court Kern. J.