Payne v. Pullan

KERRIGAN, J.

This is an appeal from an order refusing io vacate a judgment taken by default in an action in unlawful detainer. The complaint was filed on December 14, 1915, and two days later an order was made directing service

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of summons upon the defendant by publication for three days, the ground of such order being that the defendant was concealing herself in order to avoid being served with summons. On December 24, 1915, the defendant, appearing specially for the purpose, served and filed a notice of motion to quash such service of summons, basing the motion upon the ground that at the time of the making of the order therefor and prior thereto she was a resident of the state of Washington; that therefore jurisdiction of her person could not, under the provisions of section 413 of the Code of Civil Procedure, be acquired by publication of the summons for a period of less than two months. On December 28th, pending the making of this motion, the court, upon affidavits filed on behalf of defendant, made an order extending her time within which to appear and plead to the complaint two days after denial of her motion to quash the service of summons, if denied. This order, upon notice and after argument by both parties, was, on December 30th, vacated and set aside. The record does not show .what disposition was made of the motion to quash the service of summons; but it was in effect denied by the action of the court in directing judgment against the defendant, based upon the conclusion that she had personally appeared in the action by procuring the order extending her time to plead, and had not thereafter within due time caused any pleading to be filed on her behalf. No appeal was taken from such judgment.

On June 29, 1916, the defendant served and filed a notice of motion for an order vacating and setting aside the judgment by default taken against her, the grounds of the motion being that the summons had not been served upon her, and hence that jurisdiction over her had not been acquired by the court, she being a nonresident of the state, and summons not having been published for the time fixed by law to acquire jurisdiction over a nonresident. The motion was noticed to be made on July 14tli, but it was not in fact made until the following October. On November 28, 1916, the court denied the motion, and on January 15, 1917, the defendant appealed from that order, which is the matter now before us.