Am. Law Book Co. v. Superior Court of Santa Clara

MELVIN, J.

A writ of

certiorari

was issued by this court directed to the superior court of Santa Clara County, requiring that court to certify a transcript of the proceedings and records in the case of E. V. Burke

v.

The American Law Book Company. That case was appealed from the justice's court of San Jose Township. It was an action for damages for breach of contract, the sum demanded being $299, and in a second count for money had and received the same amount was also prayed for. Summons was issued and was duly signed by John T. Wallace, justice of the peace of said San Jose Township, ánd to said summons there was attached a certificate of the county clerk of Santa Clara County, under seal, duly setting forth the qualifications of said Wallace as a justice of the peace. The summons was served by the delivery of a copy thereof with a copy of the complaint thereto attached, to the secretary of state, but the return to this writ shows that the copy of the clerk’s certificate to the official character of the justice of the peace had no seal indicated thereon. The return of the sheriff of the county of Sacramento certified that The American Law Book Company was a foreign corporation doing business in the state of California, and that said corporation had not designated any resident of this state as a person upon whom process might be served. Thirty days after the service of summons as shown by the return above' described, the justice of the peace entered judgment for $299 in favor of plaintiff, as defendant had made no appearance. Fifteen days following the entry of said judgment defendant appealed to the superior court. It does not appear either from the petition or the return whether ‘this appeal was formally upon questions of both law and fact, but the record does show that petitioner’s attorney declared at the hearing in the superior court, in answer to a

[329]

question by the judge, that it was taken upon questions of law alone. At this hearing the appellant offered certain oral and documentary evidence which, under stipulation, was admitted by the court, subject to a future ruling, but the court thereafter made no ruling on the admissibility of this evidence, which consisted of (1) a copy of the summons, complaint and certificate served upon the secretary of state, showing the absence of a seal from the said certificate; (2) the testimony of the officer who served the summons on the secretary of state, that his knowledge of defendant’s failure to designate a resident agent to receive service of process in California was based upon his examination of the records in the office of the secretary of state; and (3) testimony of an employee of the corporation defendant that the company’s method of doing business was to take orders in California for books and to send such orders for approval to defendant’s office in New York, and that upon approval of the orders the books were sent by freight or express directly to the purchasers. Upon this showing the superior court affirmed the judgment, but a partial satisfaction having been made a new judgment for two hundred and seventy dollars was entered.