Plaintiff sued to quiet his alleged title to a tract of land in Los Angeles County, and among a large number of other defendants was the respondent Frank F. Fisher. Summons was issued in the action running to said Fisher "among the rest, and one George S. King subsequently filed an affidavit that he had personally served said Frank F. Fisher, with a copy of the summons and complaint in the аction in Los Angeles County on April 9, 1912. The default of said Fisher was thereafter taken and on May 11, 1912, a judgment was entered against him in favor of the plaintiff quieting the title of the latter to the land described in the complaint. On September 5, 1913, said Fisher, through his attorneys and upon notice given to plaintiff, moved the trial court in which said judgment had been entеred to set aside the default and vacate the judgment on the ground that said Fisher had never been served in said action. In support of the motion an affidavit of Fisher made in the state of Illinois was filed. In this he swore, among other things, that he had not been served with summons in said action at any time, or at all, in Los Angeles, or elsewhere; that he was not in the county of Los Angeles, or in the state of California during the year 1912, and that he had no knowledge of the *515 pendency of the action until about a year after the rendition of the judgment against him. The motion was heard on this affidavit and the judgment-roll in the case, nothing further being presented, and the court thereafter made an order setting aside the default and the judgment. Plaintiff appeals.
The only question on this appeal is as to the power of the trial court to make the order involved here. Appellant insists that it had no such power on account of the lapse of time intervening between the entry of the judgment and the motion to set it aside. It will be obsеrved that the motion was made more than a year after the entry of the judgment. It is not contended, as of course it could not be, that the judgment entered in this action аgainst defendant was invalid upon its face. What is claimed is that though not so appearing on its face it was in fact void because the affidavit of service by King was false; that no summons had ever been served upon respondent, and, hence, the court was without jurisdiction to pronounce judgment against him. Undoubtedly, though it appear from the record of a judgment entered upon a default that service was made upon a defendant, and, hence, a judgment against him is valid upon its face, it is well sеttled that such a judgment may be set aside on motion either under section 473 of the Code of Civil Procedure on any of the grounds therein specified; or independent of that section where, as here, the motion is made upon the ground that its entry was based solely on a false return of personal service upon the defendant. But in оrder to invoke the power of the court to set a judgment aside on the ground that it was entered against a party defendant without service of process on him at all, the motion must be made within a reasonable time, or the right to make it is lost, and the party is remitted to an action in equity to have the judgment declared void. While in this discussiоn we have referred to section 473 of the Code of Civil Procedure, we have, however, only done so as bearing on the further consideration of the question whеther the motion of defendant was made within a reasonable time, because this application to set aside the judgment is not made under said section 473. That section provides for relief upon motion when the judgment is taken 'against a party through “mistake, inadvertence, surprise or excusable neglect.” Not having been served with process, and, hence, having no knowledge that he was required to ap *516 pear, the failure of respondent to do so cannot be said to arise from аny mistake, inadvertence, surprise, or neglect on his part. If respondent, as defendant in the action, had not been served with summons, he had an absolute right on motion, if timely made, to have the judgment set aside independent of section 473, or any other statute, as violative of the fundamental principle that one may not be deprived of his property without due process of law. The only condition to his right to invoke this aid of the court by a motion in the action itself is that his motion be made within "a reasonable time.
Was the motion here made within that time? Under the plain rule of the authorities in this state, it was not. As we have stated, the motion was not made until more than a year after the entry of the judgment. Section 473 of the Code of Civil Procedure, heretofore referred to, provides that motions made under its provisions to set asidе a judgment shall be made within six months after it is taken, save when the motion is on the ground that from any cause the defendant has not been personally served with summons, when one year is allowed within which to make it. Whether the latter provision would apply in a case like this
(Baker
v.
O’Riordan,
It is contended, however, by resрondent that if by analogy the limitation of time specified in said section 473 be applied, yet the order made here may be sustained on another principle оf law which he invokes. This is that when on a motion of this character an affidavit is filed showing that no service at all was made on a moving defendant, and no evidence is рroduced countervailing this showing, and no objection or exception is taken to the introduction of such testimony, the fact is then established without controversy and a simple question of law is thus presented, and such condition of undisputed facts establishes a judgment just as void as if its invalidity appears, on the face of the judgment, and like such a judgment may be set aside at any time when the uncontroverted fact of the failure to serve process shows that the court was without jurisdiction to pronouncе the judgment, citing
Hill
v.
City Cab etc. Co.,
Under the views expressed, the motion of respondent to set aside the judgment was made too late, and for that reason the court had no powеr to make the order. Under such circumstances the respondent is required to seek whatever relief
*518
he is entitled to through an independent action in equity to set aside the judgment for want of jurisdiction in the court to pronounce it.
(Brackett
v.
Banegas,
The order appealed from is reversed.
Melvin, J., and Henshaw, J., concurred.