German Savings & Loan Society v. Bien

' Judgment—Motion to Vacate for Want of Service of Summons— Affidavit of Merits not Required.—Where a motion to vacate a judgment by default is promptly made upon the ground that the defendant has never been served with summons, and that the court did not obtain jurisdiction over the defendant, no affidavit of merits is required; and an objection upon appeal from an order granting the motion that an affidavit of merits served and filed with the motion was insufficient cannot be considered.

Id.—Benefit of Code Section not Invoked—Meritorious Defense not Required—Absolute Right to Vacate Void Judgment.—In such case the moving party is not invoking the benefit of section 473 of the Code of Civil Procedure, but is asking for the absolute right to have a judgment in fact void vacated and set aside and is not required to show that he has a meritorious defense to the action as a condition to the granting of such right.

Id.—Conflicting Evidence as to Service of Summons—Statement of Court—Implied Contrary Finding.—Where the motion to vacate the judgment was heard upon affidavits and oral testimony, which was in absolute conflict as to whether or not the moving party had been served with summons, the statement by the court at the close of the evidence as to its opinion that the defendant had been served with summons, which was not signed or filed as a finding of fact, could not conclude the court from subsequently making a finding contrary thereto, which was impliedly done when the court vacated the judgment, which could only be done upon the ground stated in the notice of motion, that the moving party had never been served with process.

Id.—Implied Finding Supported by Evidence.—The implied finding was supported by the evidence of the respondent, though in direct conflict with that of the appellant.