Sanders v. Howard Park Co.

MOORE, P. J.

The question for decision is whether the motion to he relieved of a default is defeated by former final orders relative thereto.

On July 10, 1942, respondents commenced an action (case No. 478,480) to declare an abandonment and to quiet title under a lease executed on May 29, 1924, between respondent lessors and appellant’s assignors. No service of summons was made on appellant until February 11, 1944, pursuant to which the default of appellant was entered April 18, 1944, and on July 11,1944, judgment was entered quieting title in respondents. No appeal was taken.

[722]

September 2, 1947, appellant served and filed its notice of motion to quash, the service of summons, to set aside the judgment and to dismiss the action. On September 16, 1947, the motion was denied. This appeal is from the order denying the motion. Prom the record it is clear that such act was not erroneous.

Appellant’s basic contention is that judgment could not have been legally entered against it for the reason that the court had not acquired jurisdiction in that the order for service on the secretary of state was based upon affidavits which were insufficient to show due diligence to locate and serve the officers of appellant. But prior to the instant order it had already been judicially determined three times that such affidavits

were

sufficient to support the order for such service of summons. (1) In the original action the court found from the affidavits “that the defendant is a California corporation and that defendant has not filed with the Secretary of State of California, a designation of natural person as its agent for the service of process, as required by Civil Code 373; and . . . that

personal service against said, defendant cannot be made with the exercise of due diligence in any other manner provided by law.”

Upon such finding and evidence the order for service on the secretary of state was made. (2) As a basis for entering its judgment the court “examined the affidavits” filed as a basis for the order, and the order directing such service and the proof thereof; and after having taken testimony on the merits, the court found “that ever since January 5, 1943, said corporation did not maintain a place of business in the State of California during the pendency of this action, that