Zobel v. Zobel

LORIGAN, J.

This is an appeal from an order vacating a judgment entered upon default and granting defendant leave to answer.

The record shows that on May 28, 1904, plaintiff commenced an action in the superior court of San Diego County to quiet title to a lot of land in the city of San Diego. An affidavit and order for publication of summons were thereafter made and service of summons had on defendant by giving him a copy of the summons and complaint in Prescott, Arizona, on June 13, 1904. On June 24, 1904, defendant filed a general demurrer and answer to the complaint, but omitted to serve copies thereof upon counsel for plaintiff. Thereafter, on November^, .1904, and upon eighteen days’ notice thereof served on defendant in Prescott, plaintiff moved the court to strike said demurrer and answer from the files on the ground that no service of the same was made on plaintiff. When said motion came up for hearing, J. C. Hizar, Esq., one of the attorneys for defendant herein, appeared in court and on behalf of defendant asked the trial court to postpone the hearing of said motion, which the court refused to do, but proceeded to hear the same and made an order striking such pleadings from the files. On the same day the default of defendant was entered and on the tenth day of November, 1904, the cause was brought on before the court for hearing and a decree rendered in favor of plaintiff. After the entry of the decree and on December 23, 1904, the defendant moved the court to set aside said decree on the ground that the summons in the action had not been personally served on him, and that he had a good and

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meritorious defense to the action. The answer, profert of which accompanied the motion, set up as such defense that he had a valid and subsisting lien upon the premises described in the complaint, consisting of the mortgage claim for three thousand dollars. The court granted the motion and made an order setting aside and vacating the judgment and default, and allowing defendant to file the answer he presented on the motion. The validity of this order is the only question presented on this appeal.

It is provided by section 473 of the Code of Civil Procedure that when for any cause the summons in an action has not been

personally