139 Cal. App. 671 | Cal. Ct. App. | 1934
Plaintiff; and appellant J. J. Richert, claiming to own an undivided half interest in certain real property situate within the city of Oceanside in San Diego County, filed in this action a complaint in which he alleged that the defendant Gr. H. Jones was owner of the
On February 4, 1930, there was filed on behalf of respondent Ingersoll a notice that on February 10, 1930, respondent would move the court to vacate the said judgment on the ground that respondent had never been served with summons or complaint in the action. This notice was accompanied by respondent’s affidavit that he had never been served with summons or complaint in the case and that he had stated the ease to his counsel and been by them informed that he had a complete defense on the merits, and by a verified answer and cross-complaint asserting respondent’s ownership of said lot. 'Thereupon it was, on February 9, 1930, stipulated between counsel for appellant and .respondent that the motion so noticed for February 10th
Since the showing made by the affidavit presented a conflict of evidence as to whether respondent Ingersoll had been served with process or not we could not disturb the trial court’s determination of that phase of the case had the matter been properly before it for determination whatever might be our feeling with respect to the weight of the evidence. As it vacated the judgment that court must necessarily have decided that he had not been served. The court’s authority to vacate a judgment not void on the face of the judgment-roll but void in fact for want of jurisdiction of the person of the defendant exists independently of the provisions of section 473 o'f the Code of Civil Procedure or of any other statutory provisions. (Norton v. Atchison etc. R. R. Co., 97 Cal. 388 [30 Pac. 585, 32 Pac. 452, 33 Am. St. Rep. 198]; Mott Iron Worles v. West Coast Plumbing Co., 113 Cal. 341 [45 Pac. 683]; Waller v. Weston, 125 Cal. 201 [57 Pac. 892]; Smith v. Jones, 174 Cal. 513 [163 Pac. 890]; George Frank Co. v. Leopold & Ferron Co., 13 Cal. App. 59, 65 [108 Pac. 878].) At common law the court’s power to set aside such a judgment on motion ceased with the ending of the term at which it was entered. As we have no terms of court in this state the limitation ‘on the exercise of such authority here is that unless the judgment is void on the face of the judgment-roll the court’s action to set it aside must have been invoked within a reasonable time (Smith v. Jones, supra [p. 515]; Norton v. Atchison etc. R. R. Co., supra [p. 932]; George Frank Co. v. Leopold & Ferron Co., supra [p. 62]), or else the right is lost. The
We have not, of course, overlooked the line of cases illustrated by Ex-Mission L. & W. Co. v. Flash, 97 Cal. 610 [32 Pac. 600], and McGuinness v. Superior Court, supra, in which, as is recognized in Vaughn v. Pine Creek Tungsten Co., supra, it seems to be held that when the judgment complained of was procured by extrinsic fraud practiced upon the court, the time for applying by motion to set it aside' is not limited by the analogy of section 473. Neither have we overlooked the consideration given to the subject in Swallow v. Tungsten Products Co., supra, in which the Supreme Court, adopting an opinion of the District Court of Appeal for the Second District written by Mr. Justice Conrey, holds that the presentation to the court of an affidavit purporting to show personal service upon a party not actually served is extrinsic and not merely intrinsic fraud. It is to be noted, however, that Swallow v. Tungsten Products Co., supra, neither in terms overruled Smith v. Jones, supra, nor did more than incidentally refer to that ease, although in Smith v. Jones there was presented exactly the situation of an affidavit of personal service made upon a party who was not, according to his showing, even within the state at the time the service was attempted. Our conclusion is that there was no intention' in Swallow v. Tungsten Products Co. to modify, overrule, or affect the rule laid down in Smith v. Jones, but that wrhat is meant is that, where an affidavit purporting to show personal service on a party who has not been served at all is attacked; the case is one of extrinsic fraud upon the court only if the affidavit was wilfully false or made with reckless disregard for the truth, in which case the rule announced in McGuinness v. Superior Court, and in Swallow v. Tungsten Products Co., would apply: but that
Turning now to the ease at bar, it is to be observed that neither in the notice of motion to vacate the judgment, nor in the affidavit filed with it, is there anything said in terms about any fraud, the only claim being that respondent was not in fact served; and that, therefore, there is strictly applicable the comment which in Vaughn v. Pine Creek Tungsten Co. the court made with regard to the inapplicability of the doctrine of the McGuinness case to the facts before it, namely, that “no fraud having been alleged, in the notice of motion herein, to have been committed on the court or by plaintiff, that case does not determine the proposition of law considered in the instant case”. It is true that in replying to the counter-affidavit filed in appellant’s behalf in the ease at bar there is matter set up which might be taken as in a general way intended to impugn the good faith of various persons connected with appellant in the litigation but there is nothing in even this showing that tends to reflect on the good faith of Brackett, the process server who made the affidavit complained of, the utmost that could be claimed to be charged even by implication as against him being that he might have made some mistake in identity by serving one of respondent’s teamsters instead of respondent.
From what has been said it follows that the order setting aside the judgment cannot stand. There is nothing in the point that respondent will thereby be deprived of his property without due process of law. He has not been prevented from seeking reasonable relief in equity, and, had he done so, the time within which he would have been required to act would be different.
The order appealed from is reversed.