Arko v. Starsevich

California Court of Appeal Sep 15, 1965 No. Civ. 537Published

Before: Conley

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Holding. The court held that the trial court did not abuse its discretion in denying the defendant's motion to set aside a default judgment, as the defendant failed to provide a valid excuse for his four-month delay in appearing after receiving correct legal advice. Furthermore, the court held that a complaint need not allege the jurisdictional facts required for personal service under section 417 of the Code of Civil Procedure.

Issues

Whether the trial court abused its discretion in denying a motion to set aside a default judgment under section 473 of the Code of Civil Procedure.
Whether a complaint must allege facts establishing the court's jurisdiction over a non-resident defendant served pursuant to section 417 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The granting or denial of a motion to set aside a default judgment is within the sound discretion of the court.”

“We cannot interfere with the exercise of discretion by the trial court in refusing to grant defendant’s motion to be relieved from the default”

“The right to serve and bring within the jurisdiction of a court a specific defendant is something entirely apart from the allegations necessary to state a cause of action.”

[85]

CONLEY, P. J.

The defendant appeals from a default judgment in favor of the plaintiff. Prior to the entry of judgment, the defendant made a motion for relief from default under section 473 of the Code of Civil Procedure; the motion was denied.

In this assault and battery case, the judgment in favor of Louis Arko, the plaintiff, was for a total of $8,600, made up of $5,000 general damages, $1,100 special damages, and $2,500 exemplary damages, besides interest and costs. The plaintiff and the defendant had been partners in a restaurant and bar called the “Brass Rail.” In the evening of the 12th day of November, 1959, at about 8 :30 p.m., as the result of a quarrel, the defendant struck the plaintiff in the face, knocked out a tooth, temporarily paralyzed certain facial areas, and made it necessary for him to secure treatment at a hospital with a consequent loss of earnings.

After the assault, Mr. Starsevich moved from California, where he had his domicile, and became a resident of the Village of Keewatin in the County of Itasca, State of Minnesota. For some time thereafter, the plaintiff sent him periodical remittances on the purchase price of his interest in the “Brass Rail,” which Mr. Arko had bought from him. Plaintiff did not attempt to complete service in the assault and battery case for several months, doubtless not wishing to mix a lawsuit with a pending business relationship. But eventually service was effected by publication and personal service in accordance with the provisions of section 417 of the Code of Civil Procedure, which reads: “Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State (a) at the time of the commencement of the action, or (b) at the time that the cause of action arose, or (c) at the time of service.

’ ’

As the procedure prescribed by this section accords with due process and the specified method of service was complied with, jurisdiction was acquired over the defendant for the purpose of rendering a personal judgment against him.

Arko v. Starsevich

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CONLEY, P. J.

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