Salmonson v. Streiffer

SHAW, J.

Plaintiff appeals from an order of court granting defendant’s motion to set aside his default and vacate the judgment rendered thereon against him. ■

Respondent assigns several grounds upon which he insists the record herein is not entitled to be considered upon this appeal for any purpose. We deem it unnecessary to pass upon this contention, for the reason that, accepting the record at appellant’s valuation thereof, it discloses no. error in the ruling of the court.

As appears from the transcript the complaint was filed November 9, 1908. No summons was ever served upon defendant. On November 13, 1908, defendant caused to be served upon plaintiff’s attorney a notice as follows: “You and each of you will please take notice that the defendant herein hereby excepts to the sufficiency of the sureties upon the undertaking heretofore given by said plaintiff in said action to secure an attachment therein, and demands that said sureties justify as required by law. Goldberg & Meily, Attorneys for Defendant.’’ On December 14th, in the absence of service or filing of any other documents on behalf of defendant, the clerk entered defendant’s default, the ground assigned therefor being that defendant had been regularly served with process and liad failed to appear and answer plaintiff’s complaint. Judgment followed upon the same date. Thereafter, pursuant to notice duly given, defendant made his motion to set aside the default and vacate the judgment upon the ground that the court never obtained jurisdiction of the person of the defendant. This motion was granted.

Appellant contends that excepting to the sufficiency of the sureties upon the undertaking, notice of which was served upon plaintiff, constituted a voluntary appearance in the ac

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tion on the part of defendant. We cannot assent to this proposition.

Section 1014, Code of Civil Procedure, provides: “A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance or when an attorney gives notice of appearance for him.” In

Vrooman

v.