Bullard v. Superior Court

GATES, J.,

pro tem.

Responsive to an application for a writ of prohibition and for a writ of review, this court heretofore ordered to issue its alternative writ of prohibition. It appears that on or before the twenty-sixth day of July, 1929, Jennie Rosenberg instituted in the respondent court a certain action in which she is plaintiff and petitioner is defendant. In the action Mrs. Rosenberg seeks to obtain a judgment against petitioner for the sum of $110,690 and certain other and further relief. On or about July 26th a summons was issued on the complaint and directed to the petitioner herein, and thereafter a writ of attachment was issued and levied against her property in California. On December 2, 1929, the respondent court by one of its judges, Honorable Leon R. Yankwich, made an order for publication of summons upon the petitioner, who is a resident of Iowa. The order of publication recites, among other things, the following: “Upon reading and filing of the affidavit of A. E. Coppleman, and it satisfactorily appearing therefrom to me that the defendant Kate Bullard resides out of this state. ...” The affidavit upon which this order for publication of summons is based shows thereon the following indorsement and file-mark: “Filed 1929, Dec. 4, p. m. 2 46 L. E. Lampton, Co. Clerk, B. N. Hollister, Deputy.” On December 7, 1929, petitioner was served in the state of Iowa with a copy of the summons and complaint. On March 20, 1930, summons and proof of service were filed with the clerk of

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the superior court, respondent herein. On April 19, 1930, Honorable Marshall F. McCoinb, one of the judges of the superior court, made an order entering the default of petitioner here for her failure to answer the summons and complaint. Thereafter, on April 19, the superior court made and entered judgment against petitioner in the sum of $65,350 and costs. This judgment has not been vacated or set aside. On April 29, 1930, petitioner prepared and served upon counsel for Mrs. Rosenberg a notice of motion to quash the service of summons. On May 2d the motion to quash came on regularly for hearing before the Honorable Myron Westover, a judge of the respondent court, and was denied.

Petitioner claims that she is not indebted to Mrs. Rosenberg in any sum, and that the superior court action is not brought in good faith. She further avers that unless the judgment is annulled Mrs. Rosenberg will cause an execution to be issued on the judgment, and petitioner will suffer irreparable damage.