Vaughn v. Pine Creek Tungsten Co.

California Court of Appeal Mar 7, 1928 No. Docket No. 5260.Published

Before: York

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Holding. A motion to vacate a default judgment based on matters outside the record, such as the falsity of an affidavit of service, must be brought within one year of the entry of judgment in the absence of extrinsic fraud.

Issues

Whether a motion to vacate a default judgment based on matters dehors the record is subject to a one-year limitation period when no extrinsic fraud is alleged.
Whether the judgment was void on its face due to defects in the affidavit of service.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a motion to set aside a default and vacate a judgment entered thereon on matters dehors the record in a case where no extrinsic fraud is alleged should be limited to one year from the time of entry of judgment on personal service.”

“It is also well settled that when a judgment on the face of the judgment-roll is void, an attack can be made upon it at any time and that the court can set it aside of its own motion. But that is not the case here.”

YORK, J.

Appeal by defendant, a foreign corporation, from an order of the trial court denying its motion to set aside a default and vacate a judgment against it entered thereon.

The motion to vacate was made upon the ground that the service of summons and complaint was made by a process-

[761]

server upon one Shapley as the general manager and “designated agent” of defendant, a foreign corporation, and that said Shapley was not the general manager or designated agent of said corporation, and said corporation was not doing business in the state of California at the time of the service of the summons and complaint. There is no charge of fraud against the plaintiff, except that incidentally fraud is charged against the process-server in that Shapley, upon whom he made the service, was not the general manager or designated agent of defendant. No charge was made by defendant in its motion that any fraud was committed on the court by plaintiff. The motion, therefore, is not supported by the case of

McGuinness

Superior Court,

196 Cal. 223 [40 A. L. R. 1110, 237 Pac. 42], cited by appellant, as the motion in that case was based upon extrinsic fraud of the party to the action wherein the review was sought, and which fraud was committed upon the court. In the instant case the service is alleged to have been invalid for matters

dehors

the record, in that Shapley was not the general manager or “designated agent” of defendant at the time of the service of the summons and complaint, and that defendant was not doing business in the state of California at the time of the service and had forfeited its right to do business in California. No fraud having been alleged, in the notice of motion herein, to have been committed on the court or by plaintiff that case does not determine the propositions of law considered in the instant case. The motion was not made under the provisions of section 473 of the Code of Civil Procedure. Although the motion was not made under the provisions of section 473 of the Code of Civil Procedure it is the settled law of this state that by analogy to the limitation of a motion for leave to answer after judgment to one year from the'time of its rendition in case of constructive service a motion to set aside a default and vacate a judgment entered thereon on matters

Vaughn v. Pine Creek Tungsten Co.

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YORK, J.

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