Smith v. Supreme Lodge Ancient Order of United Workmen

HALL, J.

Plaintiff brought this action to recover the sum of $2,000 upon the death of her husband, Michael H. Smith, in accordance with the terms of a certificate issued to said

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Michael, by defendant, through a subordinate lodge located at Gold Hill, in the state of Nevada. The only service of summons was by publication and mailing. The affidavit for the order showed defendant to be a foreign corporation, with its principal place of business in the state of Pennsylvania, and without any managing or business agent, cashier or secretary within the state of California, and without any appointed agent or person upon whom service of summons could be had within said state. There was no writ of attachment issued, and of course no seizure or attachment of any property of defendant.

Plaintiff, however, took judgment by default on the twenty-seventh day of July, 1908, against defendant for the sum of $2,000. Thereafter, on the sixteenth day of October, 1908, defendant, appearing only for the purpose of its motion, gave notice of its intention to move the court to set aside and vacate the judgment, and to vacate and quash the service of summons. This motion was denied, and thereupon defendant appealed from such order.

It was proven without conflict upon the hearing of the motion that defendant was not doing business in the state of California, and had not done any for twenty years last past.

The contention of appellant is that, in the absence of any attachment or seizure of property of defendant within this state, the court obtained no jurisdiction in a purely personal action to render a personal judgment against a defendant not within the state, by service of summons by publication and mailing a copy to defendant addressed to its residence in another state.

This contention is sound. That a judgment so obtained in such a case is void for want of jurisdiction in the court over the person of defendant is the doctrine laid down in the much cited and leading case of

Pennoyer

v.

Neff,