Strauss v. Strauss

WILSON, J.

From a summary judgment in the sum of $4,680, together with interest and costs entered against him pursuant to section 437c of the Code of Civil Procedure, defendant appeals.

This action is on a judgment obtained by plaintiff’s assignor in the Superior Court of Cook County, Illinois. Plaintiff

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alleges in his complaint that defendant appeared and joined issue in the Illinois action. A copy of the judgment is attached to the complaint and made a part thereof; the judgment recites that defendant was personally served in Los Angeles and that he was represented in the proceedings by counsel, to wit, one Leonard W. Stearns, and that no answer or other pleading having been filed a default judgment was rendered against him.

Defendant filed an answer by which he denied generally and specifically the allegations set forth above. Plaintiff thereupon filed a notice of motion to strike the answer and for summary judgment. In opposition to this motion defendant filed an affidavit in which he alleges that he has a good defense on the merits to all plaintiff’s claims; that he did not appear in the Illinois action; that the attorney alleged to have appeared on his behalf was unknown to him and any appearance of such attorney on his behalf was unauthorized and further that he was never served in said action and. did not appear either personally or through an attorney.

Defendant contends that the trial court erred (1) in finding there was no triable issue of fact raised by the answer, and (2) in determining an issue of fact raised by the pleadings.

' The complaint contains an allegation that defendant appeared in the proceedings in Illinois and the judgment, which was incorporated by reference, recites that due service had been made upon defendant and that he appeared in the action. By the denials in his answer defendant raises the issue as to whether he did in fact appear in those proceedings or was served with process.

It may be conceded, as contended by plaintiff, that a foreign decree regular on its face is entitled to a presumption of validity. However, as stated in

Estate of Hancock,