Nelson v. Horvath

Opinion

WOOD, P. J.

In this action on a foreign (Texas) judgment, plaintiff appeals from an order quashing service of the summons and complaint on defendant.

Appellant contends that the court erred in granting defendant’s motion to quash such service of process.

Plaintiff’s complaint alleges in substance that on March 14, 1968, judgment for $9,367.05 was entered in the district court of Swisher County, Texas, in favor of Don A. Nelson and against defendant and others; that Don A. Nelson thereafter assigned his interest in the judgment to plaintiff; and that no part of the judgment has been paid. True copies of the judgment

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and assignment are attached to, and incorporated by reference in, the complaint. The judgment includes a recital that defendant was “duly and legally cited to appear herein as provided by Article 2031b, Texas Revised Civil Statutes”; that defendant did not appear or answer within the time required by law; that the citation and the officer’s return were filed; the defendant “wholly defaulted.”

On September 10, 1968, the complaint herein (on the Texas judgment) was filed and summons was duly issued thereon. A copy of the summons and complaint was personally served upon the defendant in California.

Thereafter, defendant filed a “Notice of Motion To Quash Summons.” Said notice provided in part that defendant “will and does hereby move the Court for an Order quashing service of Summons and Complaint. Said motion is made on the ground that this court lacks jurisdiction over the defendant, thus purportedly served.”

In support of the motion, defendant made a declaration in substance as follows: He was not served with a copy of the “citation or any other papers before the Texas Judgment was entered” against him. He did not receive by mail any notice of the Texas action or that a judgment had been entered against him. The “first notice” he had of the Texas judgment or the Texas action was when he was served with a copy of the summons and complaint in California in “this action NOC-721” (present action in California).