Narum v. Cheatham

CONREY, P. J.

In this action to recover damages for personal injuries resulting to plaintiff by reason of negligence of the defendant, the complaint was filed and summons issued April 17, 1926. On August 3, 1926, an order for publication of summons was signed and filed. This order was granted upon the sole ground that from the affidavit of the plaintiff filed therewith it satisfactorily appeared to the judge that the defendant “cannot after due diligence be found within this state”; that the complaint showed a good cause of action; that summons had been duly issued and that personal service thereof could not be made upon the defendant for- the reason above stated and by said affidavit made to appear.

Aside from publication and mailing in accordance with said order, there was no service of summons until April 28, 1929, when personal service was made on the defendant. Thereupon the defendant upon due notice presented his motion to quash and vacate the summons and the pretended service thereof upon certain stated grounds, and also that the action be dismissed upon the ground the summons was not served within three years from the date thereof. That motion having been granted, and the court having entered

[507]

its order dismissing the action, the plaintiff appeals from said order.

An order for publication of summons, based solely upon a finding that the defendant “cannot after due diligence be found within this state”, is void when the affidavit which constituted the evidence in support of that finding does not contain any evidence tending to prove any diligent effort to find the defendant. In the attempt to make such service the quality of diligence must be present, at least to the extent of a reasonable degree of perseverance. “A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.

(People

v.

Davis,

143 Cal. 673 [77 Pac. 651].) It follows, therefore, that if the affidavit upon which the order directing publication of summons was had in this action fails, as urged by the appellant, to comply with the provisions of section 412 of the Code of Civil Procedure, the default judgment thereafter entered on such defective service would be void on its face, and the trial court at any time could have properly set it aside.”