Wood v. Johnston

SHAW, J.

This is an appeal from an order of court setting aside plaintiffs’ default for failure to answer defendants’ cross-complaint and vacating a judgment rendered thereon.

At the same time, and with their answer, defendants filed a cross-complaint wherein they asked for affirmative relief against plaintiffs. Copies of both the answer and cross-complaint were delivered to plaintiffs’ attorney, who acknowledged service thereof by indorsing thereon the following: “Received copy of the within answer and cross-complaint this 18th day of November, 1907,” followed by his signature as the attorney of plaintiffs. Plaintiffs failed to answer or otherwise plead to the cross-complaint within the time required ; whereupon, defendants caused their default to be entered and judgment thereon was duly rendered by the court as prayed for in the cross-complaint. Thereafter, plaintiffs moved the court to set aside the default and vacate said judgment on the ground of inadvertence, excusable neglect and surprise. The motion was made upon the files and records in the case and supported by an affidavit of plaintiffs' attorney setting forth the facts alleged to constitute the excusable neglect, surprise and inadvertence.

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Upon the hearing the court made an order granting the motion, not, however, upon the grounds upon which the same was made, but, as expressed in the order, upon “the ground that said default and judgment were entered without jurisdiction, no sufficient proof of service of said cross-complaint appearing to have been furnished.” The question, therefore, fairly presented by the appeal is the sufficiency of the service of the cross-complaint. The record clearly shows that it was duly served upon plaintiffs’ attorney of record. The effect of the order as made was to hold that such service was a nullity, and- hence the failure of plaintiffs to answer did not warrant the entry of their default, nor confer upon the court .jurisdiction to render judgment thereon. In thus holding we think the court erred.

Section 442, Code of Civil Procedure, as amended by act approved March 20, 1907 (Stats. 1907, p. 706), provides that “whenever the defendant seeks affirmative relief against any party

to the action,”