Marsden v. Collins

CRAIL, P. J.

This is an appeal by the plaintiff from an order of the superior court denying his motion to set aside an order entering default on a cross-complaint. The plaintiff commenced an action against the defendants to recover damages for personal injuries arising out of an automobile accident. The defendants filed an answer and a cross-complaint. The offices of the attorneys both for the plaintiff and defendant were located in Los Angeles, at a place where there is a delivery service by mail. And the affidavit of service by mail so stated after the service of the cross-complaint was made on the plaintiff by sending a copy thereof through the mail. In due time a default for failure to answer the cross-complaint was entered. One year later, lacking two days, notice of motion to set aside default was filed. This motion was denied and the plaintiff appeals from this order.

It is the plaintiff’s contention that the court had no jurisdiction to enter the default, and he relies upon the ease of

Carlon

v.

Gray,

10 Cal. App. (2d) 658, 663 [52 Pac. (2d) 966, 969], wherein it is said: “In making service by mail and presenting to the court in which the action is pending, proof of such service in order to show jurisdiction to proceed thereafter in the case, strict compliance must be had with sections 1012, 1013 and 1013a of the Code of Civil Procedure. . . . An affidavit, if it does not show the name and address of the party serving, and the name and address of the party to be served,

and the fact of residence in different places,

is insufficient to give the court jurisdiction to enter a default judgment.” (Italics ours.)

Prior to 1931 service of a cross-complaint by an attorney could not legally be made by mailing a copy of the cross-complaint to the opposing attorney where both attorneys resided or had their offices in the same city. However, on June 12, 1931, section 1012 of the Code of Civil Procedure was amended by adding the portion italicized in the following quotation from said section:

“1012. Service by Mail, When. Service by mail may be made

where the person on whom it is to be made resides or has his office at a place where there is a delivery service by mail,

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