Smith v. Bratman

LORIGAN, J.

The actual parties in this appeal are the same as in the ease of

Smith

v.

Jones, ante,

p. 513, [163 Pac.

[519]

890], and a similar question is presented for consideration though under different circumstances.

Plaintiff brought suit against a large number of defendants td quiet his alleged title to several tracts land in Los Angeles County, had summons issued therein, and thereafter an affidavit of one V. Mayer was filed in the action in which she swore that she had personally served Prank P. Pisher, one of the defendants in the action, with a summons and copy of the complaint therein in Los Angeles County on March 21, 1913. Subsequently, an affidavit of service by him of said process on another of the defendants in the action—Mrs. Robert Bowen—in the county of Los Angeles on March 25, 1913, was made by one George B. King, and filed. Thereafter, the defaults of these two defendants were entered and on May 9, 1913, a decree quieting the title of plaintiff to the property against both said defendants was entered. On September 15, 1913, on notice to the plaintiff, said defendants— Pisher and Mrs. Bowen—made a motion in the action in which the decree was entered to have it vacated and set aside on the ground that the affidavits of service upon them of summons and complaint in the action were false; that no service whatever had been made upon them; that, hence, the court had not acquired jurisdiction to pronounce a decree against them, and that the decree attempted to be pronounced was therefore void. In support of their motion said defendants each filed a separate affidavit. Mrs. Robert Bowen swore in her affidavit, made July 15, T913, that she was the owner in fee of land described in the complaint and that she was a resident of Mesa, Maricopa County, Arizona, and that she had not been in Los Angeles County for four and a half years last past; that she had never been served with summons in said action in Los Angeles County, or anywhere else, and had no knowledge of the pendency of any such action until after the entry of the decree therein. Prank P. Fisher, in his affidavit, swore that for a number of years past he had been the owner of other property described in the complaint; that he had not been served on March 21, 1913, or at any other time, personally, or at all, in Los Angeles County, or elsewhere, with summons in said action; that he was not in the county of Los Angeles during the year 1913, but that during all of said year was without the state of California; that he knew