Zumbusch v. Superior Court
Before: Allen
Synopsis
Publication of Summons—Affidavit not Filed—Production in Court —Refusal to Hear Cause—Mandamus.—Where the record upon an application for a writ of mandamus to compel the hearing of a cause, in which publication of the summons was ordered, shows that after the lapse of the required time, the default of the defendant was entered, but the court, declined to hear the cause, for the reason that no affidavit for publication was on the files of the court, notwithstanding the plaintiff produced the original affidavit in court, and ordered the cause to be stricken from the calendar and that a new publication should bg made, the writ of mandamus will be granted to compel the court to reinstate the cause, and proceed as expeditiously as is possible with the hearing thereof.
Id.—Proper Procedure at Hearing—Showing Affidavit—Question of Jurisdiction—Power of Court.—It seems that the affidavit for publication of summons should be on file or before the court when the case is called for trial, that the court may determine the question of jurisdiction arising from the service of process. A previous order directing the publication of summons could only be made upon a sufficient affidavit, and if the trial court finds necessary facts omitted therein, it has the power to vacate the order for such publication on the ground that jurisdiction of the person has not been properly and regularly required. But if the order for such publication is not void, the court has no power to set it aside except on motion made within a reasonable time, or by action when all necessary parties have an opportunity to be heard.
Id.-—Affidavit Admittedly Sufficient—Jurisdiction Acquired not to be Divested—Disrespectful Conduct of Counsel.—Where the affidavit presented before the court is admittedly sufficient and the court has acquired complete jurisdiction of the person and of the subject matter, it could not divest itself of such jurisdiction, even though the conduct of the counsel in presenting the cause was disrespectful. The statute provides a manner thorough which courts may punish for violation of section 1209 of the Code of Civil Procedure.
ALLEN, P. J.
In mandamus.
The affidavit and return disclose the commencement of an action by petitioner in the superior court, and the presentation to a judge thereof of an affidavit sufficient in form and substance to warrant an order for publication of summons. Such order was made and followed by the publication and mailing as by said order directed. Defendant’s default was regularly entered by the clerk and the cause set down for trial. Upon the day set for the trial it was discovered by the judge that the affidavit upon which the order for publication was made was not among the files,
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and thereupon the trial court, upon its own motion, struck the case from the calendar, ordered a new affidavit for publication, and directed a new order to be obtained. Counsel for plaintiff being present, presented to the clerk the original affidavit and the same was filed; and thereupon counsel moved the court to proceed with the trial, or to designate a day for the trial thereof. The trial judge refused to reinstate the case upon the trial calendar, and refused to hear the cause or to exercise jurisdiction in the premises, for the reason that the judge making the order for publication had no jurisdiction to make such order until the affidavit presented in support thereof was filed.
Petitioner in this proceeding seeks a writ of mandate requiring the trial judge to reinstate or place said cause upon the trial calendar and to proceed at its earliest convenience to hear and determine said cause. It is conceded that the sole question presented relates to the proper construction which should be given to sections 412 and 670 of the Code of Civil Procedure. The first named section provides: “Where the person on whom service is to be made resides out of the state; . . . and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; . . . such court or judge may make an order that the service be made by the publication of the summons.” Section 670 determines what shall constitute the judgment-roll and directs the clerk, immediately after entering the judgment, to attach together and file certain papers, among which is the affidavit for publication of summons. The evident theory of the learned trial judge was that section 670, when construed in connection with section 412, indicated a legislative intent to require the filing of the affidavit before presentation, without which filing the clerk could not attach the same to the judgment-roll. We think this construction is answered by our supreme court in the case of
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