Pickett v. Hastings

Crockett. J., delivered the opinion of the Court:

In this case there are a large number of defendants, none of whom were served with a summons, so far as the record ■shows. The complaint was filed April 18th, 1868, and McNulty, one of the defendants, voluntarily appeared and filed his answer August 14, 1868. McCarthy and several other of the defendants, who were his- tenants, also appeared voluntarily and filed their answer January 26, 1869. There Avas no appearance by any other of the defendants, and those who had thus appeared caused the case to be placed on the trial calendar of the Court for the February Term, 1869. The case was regularly called for trial on the 25th day of that month, .and no one appearing for the plaintiff, the action was dismissed as to the defendants who had appeared. On the 8th day of May, 1869, the plaintiff moved the Court to vacate the judgment, and in support of the motion read his [107]own and several other affidavits, and the defendants filed several counter affidavits. The Court denied the motion and the plaintiff has appealed.

The proof of service of the answers was by affidavits, showing that the last place of residence of the plaintiff was the City of San Francisco; that after due and proper diligence at his last place of residence and otherwise, he could not be found, nor could the affiants ascertain where he then was; that, being unable to find him or ascertain his whereabouts, copies of the answers were deposited in the Post-office at San Francisco, in sealed envelopes, addressed to the plaintiff, and the postage paid; that the plaintiff had no attorney in the cause, the complaint being signed by him in propria persones. We think the affidavits disclose sufficient diligence, and that the service through the Post-office was good under Section 520 of the Practice Act. The reason why the plaintiff could not be found appears from his affidavit, read in support of his motion, wherein he states “that the impaired state of his health induced him to depart, near the end of June last, for some months of travel through and sojourn in the southern section of this State.” It further appears from the affidavit that he did not return to San Francisco until some time after the 26th January, 1869, but the precise date of his return is not stated. It does appear, however, that he ‘ ‘was wholly unaware the case” had been placed on the calendar and called for trial until after judgment had been recordedand he states some reasons why he thinks his whereabouts in the southern portion of the State might have been ascertained by proper diligence. The reason which he assigns for absenting himself for so ■ long a period, without having an attorney to represent him in the cause, is that the action was brought at the time to avoid the bar of the Statute of Limitations, and without any intention to press it to a speedy trial; that he therefore caused no summons to issue, under the belief that he could cause it to be done at any time within a year after filing the complaint; that before his departure he had a conversation with Hastings and “other defendants in this-suit” about a compromise; in which he informed them that he was com