Wood v. Peterson Farms Co.

BARNARD, P. J.

This is an action tó foreclose a mortgage in which the complaint was filed on May 19, 1930. The return of summons shows personal service on the various defendants on May 28 and May 31, 1930, respectively. Judgment was entered on December 29, 1930. On October 20, 1931, the defendants filed what they designated as a “Notice of Motion for Opening Default” in the body of which notice was given that on October 26, 1931, they would move to have “the judgment entered by default against the defendants” set aside. This motion came on for hearing at

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the time named and an order was entered denying the motion, from which order this appeal is taken.

The first contention seems to be that this motion was made upon the general ground that the appellants had never been served with summons in any manner and was not made under section 473 of the Code of Civil Procedure, and, therefore, that the court erred in permitting evidence at the hearing which tended to show that the appellants had knowledge of the pendency of this action before judgment was entered. For the presént purposes it may be conceded that a motion may be made, independently of section 473 of this code, to set aside a judgment upon the ground that it is based upon a false return of personal service on the defendants

(Waller

v.

Weston,

125 Cal. 201 [57 Pac. 892, 893];

Smith

v.

Jones,

174 Cal. 513 [163 Pac. 890]). Not only may the admission of this questioned evidence be probably explained by the fact that the appellants, in their notice of motion, stated that the same would be based upon the grounds that none of them were at any time served with summons and also “that none of said defendants had knowledge of the pendency of said action or of the judgment therein until long after said judgment had been rendered”, but it appears that a part of the evidence objected to was material as throwing light upon the question as to whether the parties had been, in fact, served. Conceding that a part of this evidence was immaterial, no prejudice appears and the court had before it ample evidence that the appellants had been personally served at the time set forth in the return attached to the summons, which fully supports the order made.