Turner v. Superior Court

THE COURT.

Petitioner, M. F. Turner, seeks a writ of mandate to compel the Superior Court of Los Angeles County to enter its order quashing service of summons on the ground that the court did not acquire

in personam

jurisdiction as the result of service of process on him in the State of Washington.

Lillian Kassuba, real party in interest herein, filed an action on June 14, 1962, in which she seeks damages for personal injuries allegedly suffered on September 18, 1961, as the result of a bowling ball falling off a ball return and holding rack at a bowling alley in Los Angeles County. She alleges negligence and breach of warranty. Joined as one of the defendants is petitioner herein, “M. F. Turner, doing business under a Certificate of Assumed Business Name as Turner Twin,” as the manufacturer of the rack. Pursuant to affidavit of plaintiff’s counsel, the court made its order for service by publication and petitioner was personally served in the State of Washington.- The order states that it appears from the affidavit that ‘‘the-Defendant M. F. Turner, doing business under a Certificate of Assumed Business Name as Turner Twin (sued herein as Doe I) resides out of the State of California,”

[470]

and “that the place of residence of said Defendant is 8454 S. 228th Street, Kent, Washington or 1125 W. Shinn, Kent, Washington. ’ ’

M. F. Turner appeared specially in the action and moved to quash service of summons. He supported his motion with his personal affidavit, the allegations of which are uncontradicted. No affidavit in opposition was filed.

The motion was denied, whereupon the within petition was filed pursuant to section 416.3, Code of Civil Procedure, and an alternative writ of mandate issued from this court. Real party in interest appears only by general demurrer, and the superior court, as respondent, has filed no separate return. Thus the factual allegations of the petition stand admitted. (See

Confidential, Inc.

v.

Superior Court,