Smith v. Jones

LORIGAN, J.

Plaintiff sued to quiet his alleged title to a tract of land in Los Angeles County, and among a large number of other defendants was the respondent Frank F. Fisher. Summons was issued in the action running to said Fisher "among the rest, and one George S. King subsequently filed an affidavit that he had personally served said Frank F. Fisher, with a copy of the summons and complaint in the action in Los Angeles County on April 9, 1912. The default of said Fisher was thereafter taken and on May 11, 1912, a judgment was entered against him in favor of the plaintiff quieting the title of the latter to the land described in the complaint. On September 5, 1913, said Fisher, through his attorneys and upon notice given to plaintiff, moved the trial court in which said judgment had been entered to set aside the default and vacate the judgment on the ground that said Fisher had never been served in said action. In support of the motion an affidavit of Fisher made in the state of Illinois was filed. In this he swore, among other things, that he had not been served with summons in said action at any time, or at all, in Los Angeles, or elsewhere; that he was not in the county of Los Angeles, or in the state of California during the year 1912, and that he had no knowledge of the

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pendency of the action until about a year after the rendition of the judgment against him. The motion was heard on this affidavit and the judgment-roll in the case, nothing further being presented, and the court thereafter made an order setting aside the default and the judgment. Plaintiff appeals.

The only question on this appeal is as to the power of the trial court to make the order involved here. Appellant insists that it had no such power on account of the lapse of time intervening between the entry of the judgment and the motion to set it aside. It will be observed that the motion was made more than a year after the entry of the judgment. It is not contended, as of course it could not be, that the judgment entered in this action against defendant was invalid upon its face. What is claimed is that though not so appearing on its face it was in fact void because the affidavit of service by King was false; that no summons had ever been served upon respondent, and, hence, the court was without jurisdiction to pronounce judgment against him. Undoubtedly, though it appear from the record of a judgment entered upon a default that service was made upon a defendant, and, hence, a judgment against him is valid upon its face, it is well settled that such a judgment may be set aside on motion either under section 473 of the Code of Civil Procedure on any of the grounds therein specified; or independent of that section where, as here, the motion is made upon the ground that its entry was based solely on a false return of personal service upon the defendant. But in order to invoke the power of the court to set a judgment aside on the ground that it was entered against a party defendant without service of process on him at all, the motion must be made within a reasonable time, or the right to make it is lost, and the party is remitted to an action in equity to have the judgment declared void. While in this discussion we have referred to section 473 of the Code of Civil Procedure, we have, however, only done so as bearing on the further consideration of the question whether the motion of defendant was made within a reasonable time, because this application to set aside the judgment is not made under said section 473. That section provides for relief upon motion when the judgment is taken 'against a party through “mistake, inadvertence, surprise or excusable neglect.” Not having been served with process, and, hence, having no knowledge that he was required to ap