Foster v. Vehmeyer

GAROUTTE, J.

This appeal is taken from an order setting aside a default judgment. The question presented is, Was the default prematurely taken? Defendant was served with summons by publication. The order for publication provided: “It is ordered that service of the summons in this

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action be made upon the defendant ... in the Pacific Bee, a newspaper published in said county of Sacramento; that such publication be made at least once a week for two months.” The first publication was made June 14th, and the last publication August 9th. The default was taken September 11th.

The default in this case could not be taken until thirty days after the completion of service of the summons. The question is then presented, When was the sérvice completed? Section 413 of the Code of Civil Procedure, among other matters, provides: “ The order must direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the state, or absent therefrom, must not be less than two months.” In the present case the defendant resided out of the state. There appears to be but one rational construction to be given this statute, and that is, the defendant is entitled to the publication of the summons for a period extending over two full calendar months. It is not at all necessary that two full calendar months should intervene between the first and last publication; but it is necessary that the summons be published once each week for those two months; and it is also necessary that from the day of the first publication two calendar months should intervene before the service of the summons is complete. In other words, the first publication in this case having taken place upon June 14th, the period of two months expired upon August 13th, and thirty days must elapse after that time before a judgment by default can be taken. In this case the two months expired upon August 13th, and the default being taken upon September 11th, it is evident that it was prematurely taken.

The aforesaid section 413 of the Code of Civil Procedure also provides: “ When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post-office, and in either case the service of the summons is complete at the expiration of the time prescribed by the order for publication.” Here, the time prescribed by the order of publication was two months, and therefore the service of summons was not complete until the expiration of that period of time. This is the construction given to this statute in the past.