Fox v. Townsend

Appeal—Order Vacating Judgment—Service by Publication—Presumptions.—Upon an appeal from an order vacating a judgment by default as against a defendant served only by publication of summons, made within one year after the rendition of the judgment, under section 473 of the Code of Civil Procedure, where the record consists only of the original judgment-roll and the order setting the judgment aside, without any bill of exceptions, and does not disclose the ground on which the motion was based, every presumption is in favor of the action of the lower court, and it must be assumed that a sufficient showing was made to warrant the order setting aside the judgment as to such defendant.

Id.—Ground of Order Urged in Brief—Insufficiency of Affidavit for Publication. — A statement in appellant’s brief that the ground of the order setting aside the judgment was that the affidavit for publication was insufficient in its allegations as to his residence out of the state constitutes no part of the record; and though the court is inclined to the opinion that the affidavit was insufficient to confer jurisdiction as to the respondent, the question is not necessary to be determined.

Id.—Power and Discretion of Court—Regularity of Proceedings.— The respondent not having been personally served with summons, the superior court had the power, under section 473 of the Code of Civil Procedure, upon a proper showing and in the exercise of a sound discretion, to set aside the judgment as to him, and to allow him to answer to the merits at any time within one year after the rendition of the judgment, even though the proceedings by publication were entirely regular and the judgment was valid upon its face.