Hershenson v. Hershenson

FOX, P. J.

This is an appeal by plaintiff for an order quashing service of process on defendant.

On February 14, 1961, plaintiff filed an action for separate maintenance against her husband, and summons was duly issued. The court also issued an order to show cause re attorney’s fees, court costs, alimony

pendente lite

and a temporary restraining order. The order to show cause was set for hearing on February 23 at 9 a. m. in the West Regional Department (Santa Monica) of the Superior Court. This hearing was

[383]

continued by court order to March 3 at the same hour. On February 28 defendant made a special appearance and filed a notice of motion to quash the service of summons “upon the grounds that the court lacks jurisdiction over the defendant . . .” and stated that said motion “will be based upon the provisions of the California Code of Civil Procedure, Section 216.1

[sic]

[Code Civ. Proc., § 416.1], . . .” In support of said motion defendant filed his affidavit, stating,

inter alia:

“Affiant was not shown as a part of the purported service herein of

[sic]

any original Summons; that the copy of the Summons delivered to affiant is incomplete in that certain material portions thereof have not been filled in; that said copy is attached hereto and made a part hereof and incorporated herein by this reference; that on its face, said Summons is fatally defective in that it shows no number, no date and shows no facts of issuance, such as signature, seal, etc.; that said purported copy of Summons is the copy received by affiant from the process server on February 14, 1961, and no other copy has ever been received by affiant. ’ ’

At the hearing on defendant’s motion to quash, the process server Carlin testified that at 5 :57 p. m. on the 14th day of February, 1961, he served the defendant by personally handing to him at 345 South Elm Drive, Beverly Hills, the following documents in this case: copy of (a) order to show cause and restraining order together with copy of Wife’s Questionnaire or Declaration and blank form of Husband’s Questionnaire on order to show cause and points and authorities; (b) summons; (c) complaint for separate maintenance; and (d) certificate of assignment and transfer. According to Carlin’s testimony, all these papers were stapled together as one package with the order to show cause on top. The original of all of these documents appears to be complete and the copies made to conform except that the copy of the summons does not contain (1) the number of the case and the department to which it has been assigned; (2) the date of its issuance; and (3) the name of the county clerk’s deputy who issued it.