Clarkin v. Morris
Before: Shaw
Synopsis
Summons—Service by Publication—Sufficiency of Affidavit.—The affidavit upon which an order for publieation of summons was procured in a case in which the judgment is sought to be set- aside herein is held to be sufficient to show the exercise of due diligence in searching for defendant and that he could not be found.
Id.—Requirements of Affidavit—Conclusiveness of Decision.—If t'he facts set forth in an affidavit to procure an order for publieation of summons have a legal tendency to show the exercise of diligence on behalf of the plaintiff in seeking to find the defendant within the state, and that after the exercise of such, diligence he cannot be found, the decision of the judge that the affidavit shows the same to his satisfaction is to be regarded with the same effect as is his decision upon any other matter of fact submitted to his judicial determination.
Id.—Whereabouts of Defendant—Lack of Knowledge of Plaintiff— Affidavit Sufficient.—The affidavit on which an order for publication of summons is procured is sufficient, although not declaring expressly that the plaintiff affiant did not himself know the whereabouts of the defendant, where such lack of knowledge can reasonably be inferred from the language of the affidavit.
Action to Set Aside Judgment—Fraud—Failure to Offer Evidence— Judgment Dnsustained.—Where the complaint in an action to set aside a judgment alleged, and the trial court fóund, the existence of a state of facts which would have warranted equitable relief against such judgment, but it appears from the record that the plaintiff failed at the trial to offer any evidence in support of allegations which were material to the claim for relief on the ground of fraud, and the bill of exceptions embodied proper specifications of the insufficiency of the evidence to sustain the findings in that regard, and the appellant made the point in his brief, the judgment in favor of the respondent cannot be sustained.
Opinion — Shaw
SHAW, J.
In this action plaintiff sued to set aside a judgment against her in favor of J. E. Morris made on October 5, 1911. The grounds assigned in her complaint for setting aside said judgment were that the same was rendered upon service by publication only and that the order for the publication of summons was procured without filing any affidavit showing that the said Gladys M. Clarkin, defendant in said action, resided out of the state of California, or had departed from the state of California, or could not, after due diligence, be found within the state of California, or that she had concealed herself to avoid the service of summons, and that said Morris, plaintiff in said action, falsely repre
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sented to the court that such affidavit had been made and thereby obtained said judgment. The defendant alleged that he had obtained the order for publication by means of an affidavit presented to the court at the time the same was obtained, and that the publication was made in pursuance of the order made upon such affidavit, and he denied that he had fraudulently represented to the court at the time' the judgment was given that the order for the publication of summons had been procured otherwise than upon said affidavit. The affidavit itself is referred to and made a part of the answer, and it was also introduced in evidence. The only question presented in the case is the sufficiency of the affidavit to sustain the order for the publication of summons.
The affidavit purported to state a case for the publication of summons on the ground that defendant could not after due diligence be found within the state, as provided in section 412 of the Code of Civil Procedure. The facts relating to this subject as set forth in the affidavit are as follqws: That defendant, Gladys M. Clarkin, is a necessary party and cannot be found within the state of California; that she had not filed or recorded any certificate of residence as provided in section 1163 of the Civil Code; that on October 22, 1889, she resided in the city of Los Angeles, state of California; that since the suit was filed, which was four days prior to the making of the affidavit, the affiant had made diligent search and inquiry for said defendant; that the summons had been given to the sheriff with instructions to serve the same on said defendant, and that his return thereon had stated that he could not find the said defendant in the county of Los Angeles; that on October 25, 1889, one Owen E. Clarkin was appointed guardian of said Gladys M. Clarkin, who was then a minor, by the superior court of Los Angeles County; that in that proceeding the guardian had filed a bond with H. H. Tonkin and E. L. McWilliams as sureties, and had caused J. C. .Wilmon, William Mead, and A. T. Trimble to be appointed appraisers of said minor’s property; that on December 4, 1889, said Wilmon and Trimble returned and filed an inventory and appraisement thereof, and that W. A. Ryan was attorney for the said guardian; that affiant had made inquiries of Tonkin, Wilmon, Trimble, and Mead as to the whereabouts of said Gladys M. Clarkin; that W. A. Ryan, the attorney aforesaid, was then deceased,
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