Wilson v. Leo

SHAW, J.

The complaint herein was filed and summons issued on October 31, 1908. On August 22, 1911, plaintiff Lantz filed and presented his affidavit upon which, in accordance with his prayer, the court made an order directing that service cf summons be made by the publication thereof. Affidavit of publication was made and filed October 31, 1911. Thereafter, and more than three years after the filing of the complaint, defendant moved to quash the service of summons so made by publication and dismiss the action, the ground therefor, among others, being the insufficiency of the affidavit upon which the order of publication was made, and that more than three years had elapsed since the filing of the complaint without due return of service of summons. This motion was granted, judgment of dismissal following. Plaintiffs appeal from the orders and the judgment of dismissal.

As appears from the affidavit filed on August 22, 1911, which was nearly three years after the filing of the complaint, the right to the order for service by publication was based upon the ground that, after diligent search to find her defendant could not be found in the state and that she concealed herself to avoid the service. Section 412 of the Code of Civil Procedure provides that ‘ ‘ Where the person on whom service is to he made . . . cannot, after due diligence, he

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found within the state; or conceals himself to avoid the service of summons, . . . and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; . . . such court or judge may make an order that the service be made by the publication of the summons. ’ ’ In

Rue

v.

Quinn,

137 Cal. 651, [66 Pac. 216, 70 Pac. 732], it is said: “In making the order for the service by publication the judge acts judicially upon the evidence which the code requires to be presented to him for that purpose, and can act upon no other evidence than such as is prescribed by the code.” And this evidence, according .to the provisions of the code, must be presented in the form of an affidavit stating the fact upon which the court bases its conclusion that the party cannot be found or conceals himself. The order recites that “upon reading and filing the affidavit of Charles Lantz and it satisfactorily appearing therefrom to me that the defendant, Martha Herbst Leo, cannot after due diligence be found within the state,” etc. It thus appears that at the time of making the order the court was satisfied of the existence of the fact that the defendant could not be found in the state. The question therefore presented is whether or not the matters stated in the affidavit were sufficient to establish the fact that defendant could not be found in the state. The affidavit shows that between the time of the filing of the complaint in October, 1908, and the date of the filing of the affidavit in August, 1911, plaintiffs sent “two persons at different'times” to the place where affiant was informed defendant resided in the county of Los Angeles for the purpose of obtaining service upon defendant; that each of said persons returned the papers to affiant “with the information that they found the gates of said premises locked, and with signs thereon warning persons from entering the said premises on. account of vicious dogs confined therein”; that these persons so attempting to make service of the papers were informed by a gardener upon the said premises that said defendant was not there and that he did not know when she would be, “though at one of said times a woman answering the description of Mrs. Leo came out of the house located upon said premises, upon the front porch thereof, but that it was impossible for either of said process servers to reach the said house or to speak with said woman, on account of said guard and of the said vicious dogs; affiant