Norton v. Atchison, Topeka, & Santa Fé Railroad

McFarland, J.

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, and to set aside the judgment and default heretofore entered on the first day of December, 1890, and to quash service of summons herein, upon the ground that said service is not such as is authorized by law, and that said court has no jurisdiction of defendant to enter said default or judgment, and that the same is void.” Affidavits were filed by both parties on the hearing of this motion, but appellant objected to the entertainment 'of any such affidavits on the part of respondent. On the 23d of January, 1891, the court granted a motion quashing the service of the summons, vacating the judgment, etc. From that order plaintiff appeals.

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 from its neglect or mistake or default of any character; its contention is, that the court has no jurisdiction over it, and no power to compel it to answer to the action. It does not ask to be allowed to come in and answer, but contends that, in its situation, it cannot be called upon to answer; therefore there can be demanded of it no affidavit of merits. In the cases cited the parties making application to set aside the judgment confessed some neglect or misconduct from which they sought to be relieved, and thus come clearly within the provisions of said section, and, of course, were compelled to comply with the provisions of the section, under the construction which the court had given them. Moreover, they were residents of the state, and within the territorial jurisdiction of her courts'; while in the case at bar respondent is a non-resident, and beyond such jurisdiction, except so far as the statute of this state can provide and has provided for jurisdiction under special circumstances. It was clearly, then, the duty of the court to quash the service of the summons, when it appeared to it that the return of such service was false; and the vacating of the judgment was an incident which necessarily followed, provided that the proceeding by motion by which this result was sought to be accomplished was a proper one.

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 decision the same, substantially, as the present section 473 of the code), and also in People v. Greene, 74 Cal. 400, 5 Am. St. Rep. 448, in Savings etc. Soc. v. Thorne, 67 Cal. 53, and other cases. (See also Ladd v. Stevenson, 112 N. Y. 325; 8 Am. St. Rep. 748; and Dobbins v. McNamara, 113 Ind. 54; 3 Am. St. Rep. 626.) In Cowles v. Hayes, 69 N. C. 410, the court, in discussing a motion similar to that in the case at bar, say: “The motion is not made under section 133 of the Code of Civil Procedure; the plaintiff does not ground his claim to relief on his own mistake, inadvertence, surprise, etc.; but he puts it on the ground that the judgment of which he complains was irregular, and against the course and practice of the court.”

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 fact going to show the invalidity of the judgment could be presented at the hearing of such motion. Where a return shows that a non-resident was personally served with summons within the state, and it is made to a¡">pear to the court that such return was false, it would be strange if, within a reasonable time, the court could not, upon application, set aside the service, or the false return of service, and vacate the judgment. There is no reason why, in such a case, the non-resident should be put to the necessity of an independent action.

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.