Willen v. Boggs

California Court of Appeal Nov 24, 1971 No. Civ. 38125Published

Before: Dunn

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Holding. The court held that a defect in a certificate of service does not invalidate a default judgment if the actual service of process was valid and provided the required notice of dual capacity.

Issues

Whether a municipal court's default judgment is void due to a defective certificate of service when the actual service of process was valid.
Whether the superior court retained jurisdiction over an equity action to vacate a judgment following a statutory amendment regarding municipal court jurisdiction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We conclude the municipal court had jurisdiction to render default judgments against Willen. While the returns of service were defective, the services themselves were not.”

“The omission from Law’s certifications, of any recitation that notice appeared on the copy of the summonses, was not fatal to the municipal court’s jurisdiction.”

Opinion

DUNN, J.

On May 10, 1963, Basil O. Boggs filed a municipal court action against Simon Willen and Western Intaglio, Inc., among others. That

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same day, J. J. Tonne and Calvin D. Crockett also filed separate muncipal court actions, naming the same defendants. Summonses and complaints were served in each case on Willen, who failed to respond, and default judgments were entered against him on October 16, 1963. On November 3, 1966, he filed a-superior court action in equity seeking an order vacating the default judgments entered for Boggs, Tonne and Crockett, alleging he had not been served with copies of the summonses and complaints. Willen further alleged he first learned of the Boggs judgment against him two years and seven months after it was entered (i.e., in May 1966) and that he first learned of the Tonne and Crockett judgments in October 1966. All three defendants answered his complaint, denying his claims. A nonjury trial was held October 8, 1970.

The trial court found that valid service of the summonses and complaints was made in each case and ordered judgment for the defendants and against plaintiff Willen. Willen appeals.

Appellant argues that the preponderance of evidence introduced at the superior court trial favors him. He mistakes our function; we may not reweigh evidence; we are concerned only with determining if the court’s findings are supported by evidence.

Willen denied he ever was served with summonses and complaints in the three municipal court actions. Contrary to this, Donald Law, a process server, testified that he served Willen in each case both as an individual and as secretary-treasurer of the Western Intaglio, Inc. His “Declaration of

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Personal Service,” filed in each case, so showed. He further testified.to the customary attachment of a slip of paper to the process, stating any multiple capacities in which parties are served, i.e., individually and as an officer of the corporate defendant. Such testimony of habit or custom is relevant evidence. (Evid. Code, § 1105.)

Willen v. Boggs

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DUNN, J.

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