Bond v. Karma-Ajax Consolidated Mining Co.
Before: James
Synopsis
Judgment by Default—Motion to Vacate—Inadvertence and Excusable Neglect—Contradicting Affidavit of Merits—Applicability of Bule.-—The rule applicable where a party moves to vacate a judgment by default under section 473 of the Code of Civil Procedure, for inadvertence and excusable neglect, and makes a showing sufficient to justify the relief, that the moving party cannot be deprived of relief because the affidavit of merits filed with the motion is overcome by counter-affidavits, does not apply where it is rightly decided that no case of inadvertence or excusable relief is shown, since he is not then entitled to set aside the judgment, no matter how strong or satisfactory may be his affidavit of merits, and any error in admitting counter-affidavits to overcome the same cannot he prejudicial.
Id.—Order Denting Motion—Review upon Appeal—Abuse op Discretion.—Before an appellate court is authorized to disturb an order denying a motion to set aside a judgment under section 473 of the Code of Civil Procedure, it must clearly appear that the court has abused the discretion committed to it, and that it is against the evidence.
Id.—Record Showing Reasonable Discretion—Support or Evidence. It is held that the record upon appeal makes it clear that the order of the court appealed from was within the limits of a reasonable discretion, and was supported by competent evidence.
Id.—Judgment Against Corporation—Jurisdiction op Superior Court. The judgment could not be vacated for want of jurisdiction of the superior court in which it was rendered, though the county in which it was brought was not within the terms of section 16 of article XII of the constitution.
Id.—Permissive Construction op Constitution—General Jurisdiction op Superior Court.—Section 16 of article XII of the constitution, as to the jurisdiction of corporations, is held to he permissive in effect, and to have been intended to give the plaintiff the right to choose the county in which he desires to prosecute the action. That section does not deprive the superior, court of any county in the state of jurisdiction to hear all classes of actions generally within the limits of the jurisdiction conferred upon it by section 5 of article VI of the constitution.
Id.-—Service op Summons upon President—Jurisdiction op Corporation.—The superior court having jurisdiction of the subject matter of the action, and having acquired jurisdiction of the corporation by service of the summons upon its president, and he having permitted default against the corporation in the belief that the claims sued upon were valid claims against it, the superior court had jurisdiction to render a judgment by default against the corporation, whatever right it may have had, if it had appeared, to change the place of trial to its principal place of business upon a proper showing.
[471]
JAMES, J.
This action was brought to recover the sum of $9,190.30, alleged to be owing by defendant corporation upon various claims, for merchandise furnished, money advanced and services rendered, all of which were assigned to plaintiff prior to the bringing of suit. No answer having been filed on the part of defendant, judgment was entered against it by default. Service of summons in the action was made upon John A. Gerner, president of defendant, in the city of Los Angeles on November 30, 1908. On May 19, 1909, judgment was rendered. A motion was presented on September 13, 1909, by defendant, whereby it asked to be relieved from its default and allowed to answer on the ground of inadvertence and excusable neglect,- and the further ground that the judgment was entered without jurisdiction. An appeal is taken from the order denying that motion.
From the affidavits used on the hearing of the motion, it appears that at the time of the service of summons Gerner was the president and a large stockholder of defendant corporation ; that his holdings of stock, together with those of relatives and friends, made up a large majority of the shares issued; that when served with summons as president of the corporation, Gerner believed that the claims sued on were all justly due, and for that reason did not formally call the matter to the attention of the board of directors and caused no defense to be made in the action. ' It further appeared that at the time the suit was commenced the corporation was not actively engaged in business, and that no regular directors’ meetings were being held. On the part of defendant, affidavits were submitted in which a considerable portion of the alleged indebtedness was denied to be owing, and it was then set out that Gerner had not only failed to inform the board of directors of the fact of the bringing of the action, but that he had concealed information of the pendency of the same from the board of directors, and that a defense would have been interposed had the directors been apprised of the fact that the corporation had been sued. An affidavit of merits sufficient in form and substance was filed by defendant and, over its objection, counter-affidavits were allowed to be filed thereto. In its order denying the motion to vacate the judgment, the court recited that the motion was denied “on the ground that there appears to the court to be no surprise,
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