Klokke Investment Co. v. Superior Court

JAMES, J.

Proceeding in mandate to compel the superior court to proceed to a hearing of a cause in that court pending. An alternative writ was issued and return made thereto. There is no material dispute as to the facts.

Petitioner herein was plaintiff in a suit to foreclose a mortgage on real estate. R. Lewis was named as one of the defendants in that action. Service was made upon R. Lewis by publication. The affidavits upon which the order for publication was made showed that an exceedingly diligent search had been prosecuted on behalf of the plaintiff in the endeavor to find the said R. Lewis in the state of California, and that said search had been unavailing. It was not shown by any of the affidavits that the residence of the said R. Lewis was known, and therefore no showing was made which required the judge of the court to order that a copy of the summons and complaint be deposited in the postoffice and be directed to the person to be served at his place of residence, as is provided by section 413 of the Code of Civil Procedure. The court did insert in its order the statement that the residence of the said Lewis might be known to two of her codefendants, and, following that statement, ordered that copies of the summons and complaint be addressed to the said Lewis in care of the two defendants, both of whom resided in the city of Los Angeles. Publication was duly made and proof furnished thereof, upon which the default of the defendant Lewis was entered. Thereafter Lewis appeared specially in the court and moved to vacate and quash the service of summons upon several alleged grounds. It was urged on the motion that the court had not acquired jurisdiction of the defendant Lewis, in that she was a resident of the state of New York; for the further reason that neither the affidavits nor the order for publication of summons showed that plaintiff had a good cause of action against the defendant; that the person who should mail the copy of summons and complaint, as required by the order, was not named; and, further, that said summons and com

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plaint so-mailed were not sent in registered packages. This motion was by the court denied, and, the cause being called for hearing before another judge, the motion was renewed, and the court sustained the same and refused to hear the case as against the defendant R. Lewis. Petitioner then filed his petition for mandate to compel the court to proceed. It must be conceded that the affidavits upon which the order for publication of summons was made stated ample and sufficient facts to sustain the order. Under the showing presented to the court at the time the order was made, no facts appeared from which the court was required to order a mailing of the summons and complaint. Nevertheless, the return as made by the plaintiff, after publication of summons, showed that it had literally complied with the order of the court in mailing copies of the complaint and summons in care of the two codefendants of the defendant Lewis; that such mailed summons and complaint were addressed as required by the court and deposited in the mails with postage prepaid. It is said that a rule of the superior court required such mailed documents to be registered. Assuming that the ease was one within section 413 of the Code of Civil Procedure (where the residence of the defendant is known), the statute was satisfied when the mailing was made as therein required. The acts necessary to give jurisdiction, as specified in an act of the legislature, cannot be added to or limited by rule of court. The court in its order for publication recited that it appeared from the affidavits presented and from the verified complaint that a cause of action existed against this defendant, and as the files of the court were before the judge who made the order, we must presume that his conclusion on that matter was properly made.