Holiness Church of San Jose v. Metropolitan Church Ass'n

KERRIGAN, J.

This is an appeal from an order refusing to set aside a default judgment.

On June 14, 1906, respondent commenced an action against the Metropolitan Church Association, a foreign corporation, and others, for the purpose of obtaining a judgment, decreeing that respondent is the owner of certain described real property in Santa Clara county, and that the appellant, Metropolitan Church Association, is the holder of the title thereto in trust for the respondent. The summons, which was duly issued on the day the suit was commenced, was, according to the return thereon, served on March 16, 1908, by the sheriff of Sacramento county on said appellant, by delivering a copy thereof, attached to a copy of the complaint, to the Secretary of State. On June 24th following (the ap

[447]

pellant in the meantime not having appeared or answered) a judgment of default was entered against it in favor of the respondent. The next day the appellant duly made a motion to open the default against it, and to he permitted to answer to the merits of the action.

The affidavit filed by the appellant in support of this motion, which is undisputed, states that said corporation was never aware or had any knowledge of any attempted substituted service upon it through the Secretary of State of California until the day following the entry of the judgment, and said appellant did thereupon immediately and has continued since to take all available, prompt and necessary steps to have this default and judgment against it set aside.

The ground of the motion is that the summons was not personally served upon the appellant, and it is based on that part of section 473 of the Code of Civil Procedure which reads as follows: “When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.” The motion here was made immediately after the entry of judgment, and if the service of the summons in the case may be regarded as constructive and not personal, then the appellant, without any showing of mistake, surprise, inadvertence, or excusable neglect, was entitled as a matter of absolute right to have the judgment vacated and set aside, and the court was without any discretion in the premises.