Harris v. Morris

BUCKLES, J.

This is an appeal from an order setting aside default of defendants and from the order setting aside the judgment entered in favor of plaintiff and against defendants on May 14,1904. The suit was to quiet title to certain lots in the city of Fresno and service of summons was by publication and mailing. The judgment by default was rendered May 14, 1904, and on May 25, 1904, the motion to set aside the default and judgment was served on plaintiff’s attorney and the same was heard exclusively on affidavits on June 9, 1904, and the motion granted upon condition that defendants pay to plaintiff the sum of $20 within twenty days from date. The defendants were permitted to and did file an answer on June 9, 1904. Payment of the $20 was tendered and refused. As said by the supreme court in

Bailey

v.

Taaffe,

29 Cal. 423, setting aside a default rests very much in the discretion of the court below and will not be disturbed unless the appellate court is satisfied that the order is so plainly erroneous as to amount to an abuse of discretion, and this discretion must be an impartial one guided and controlled in its exercise by legal fixed principles. It is to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. These rules have been followed by our supreme court ever since. Measured, then, by these general rules, should the default have been set aside and the judgment vacated?

The motion was made and heard upon the following grounds: 1. Insufficient service of summons; 2. That the default of defendants was improvidently entered and that no sufficient affidavit for an order of service of summons by publication has been made; 3. That no sufficient return of service is on file; and 4. The further grounds of inadvertence, mistake, surprise and excusable neglect. Taking these up in their order:

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The summons was published in compliance with an order made for that purpose, which order was founded upon the affidavit of A. M. Drew, the attorney for plaintiff. As no errors are pointed out in either the affidavit for publication of summons, or the order of the court made thereon, they are held to have been sufficient. The summons was published in the “Fresno Morning Republican,” and the affidavit of publication of said summons was made by J. T. Holden, the principal clerk of said newspaper, setting forth apparently all the law required, for the period of sixty days in every issue of said paper during that period. No error in affidavit for publication, order for publication of summons, or the publication itself has been pointed out to us, and we have discovered none. The affidavit made to procure publication of summons set forth that the “defendants reside out of the state of California and cannot, after due diligence, be found therein,” and their last known place of residence was the city of Los Angeles, and the order issued on said affidavit “directed that a copy of the summons and complaint in this suit be forthwith deposited in the United States post-office, at the city of Fresno, county of Fresno, state of California, postpaid, directed to the said defendants, and to each of them at their said last known place of residence, to wit, the city of Los Angeles, state of California.” The affidavit of A. M. Drew, the attorney for plaintiff, shows: ‘‘ That forthwith, to wit, on the seventeenth day of February, 1904, and in pursuance of the said order of court he deposited in the United States postoffice at the city of Fresno a copy of said summons attached to a copy of the complaint, directed to Walter B. Morris, Ethel Morris, Anna D. Morris, and Lewis S. Morris, the said defendants, at Los Angeles, county of Los Angeles, state of California, the last known place of residence as aforesaid, and paid the postage thereon in advance.” There is much doubt as to whether this evidence shows a compliance with the order. The order required a mailing of copies to each of the defendants, and the proof of mailing does not affirmatively show that a copy was mailed to each. The language is: “A copy of said summons and a copy of the complaint.” Does it clearly, or at all, appear from the affidavit that one copy of the summons and one copy of the complaint