273 P. 558 | Cal. | 1929
This appeal is from an order made and entered by the superior court in and for the county of Los Angeles, vacating the judgment and decree of foreclosure of a mortgage upon real estate in an action wherein the defendant and respondent was served by publication, and wherein her default and the judgment which followed it were based upon the order for and affidavits of publication as these appear in the record before us, and upon the recitals of the decree. The respondent presented no brief either before or after the issuance of an order to show cause, but her former attorney of record, upon the issuance of said order, was given leave as amicus curiae to present a brief in support of the validity of the order appealed from. The original complaint herein was filed in said court on December 12, 1924. An amended complaint was filed on January 30, 1925. The application and affidavit for publication of summons was presented and filed on February 17, 1925, the application being based upon the showing that the defendant Frances May Craig was concealing herself for the purpose of avoiding service of summons. [1] Both the original and amended complaint being verified, and both showing a good cause of action against said defendant, no affidavit of merits was required, although an affidavit of merits somewhat defective in form, but not fatally so accompanied said application. The order for publication of summons was made on February 20, 1925. Thereafter several affidavits showing the due publication of the alias summons and the mailing of the same, together with a copy of the amended complaint, were presented and filed, and there upon and on the eleventh day of June, 1925, the said defendant having defaulted, the cause came on for hearing and upon due proofs of the foregoing facts and also of the averments of the amended complaint the decree of fore closure was duly made and entered and the property involved in said foreclosure was thereafter sold pursuant to said decree, the plaintiff becoming the purchaser thereof *223 The motion of the defendant and respondent was presented and filed on December 10, 1926, and was made upon the ground that the judgment was void upon its face, and was based solely upon the record in the action. The trial court on January 4, 1927, made and entered its order setting aside the judgment and decree of foreclosure, basing its order solely upon the ground specified in the defendant's motion and upon the record in the case. This appeal is from said order.
The vital question presented upon this appeal is as to whether or not the judgment which was vacated and set aside was void upon its face, since, if it was not so, the application to set aside the judgment, not having been made until eighteen months after the entry of the judgment, must be held to have been made too late, and hence to have been made at a time when it was clearly beyond the power of the court to grant said application. (Consolidated Construction Co. v. Pacific Elec. Ry. Co.,
The criticism which the former counsel of the respondent makes as amicus curiae to the effect that it was not made to appear that the plaintiff had placed the process herein in the hands of the sheriff of Los Angeles County for service would not of itself militate against the sufficiency of the effort of her agents and process servers to make the service of the summons in question upon the defendant, in view of the repeated efforts made by them to gain access to the defendant for the purpose of making such service, since it does not appear that the official in question, had he been entrusted with the duty of making such service, could have done more than the plaintiff's process servers did in the premises. The respondent relied solely upon the record as the foundation of her motion to set aside said judgment and decree. In so doing, and by her silence otherwise, she admitted the truth of the facts set forth in the affidavits upon *225 which the order for publication was based, and also admitted the due receipt of the summons and complaint herein directed to be served upon her by registered mail. She made neither effort nor showing for the seeking of relief under section 473 of the Code of Civil Procedure. [3] She allowed a year and a half to expire after full knowledge imparted to her by the receipt through the mails of the summons and complaint in said action and after she must be reasonably presumed to have known that said judgment and decree of foreclosure had been made and that the property affected thereby had in due course been sold thereunder, before taking any steps to avoid the effect of such judgment. Upon her belated application to set aside said judgment and decree she made no further showing than as above set forth. We are satisfied that upon such showing the judgment was not void upon its face, and that this being so it was clearly beyond the power of the trial court to vacate and set aside said judgment and decree.
The order is reversed.
Waste, C.J., Curtis, J., Langdon, J., Preston, J., Shenk, J., and Seawell, J., concurred.