Beatty, C. J., concurring. Before terms of court were abolished, it is clear that a default judgment entered upon a false return of personal service of summons could have been set aside upon motion made within the term. The abolition of terms cannot be held to have abolished the remedy by motion, but only the limitation of time within which the motion must be made; and if, under section 473 of .the Code of Civil Procedure, a defendant may be relieved on motion from a default [394]judgment taken against him through his mistake or excusable neglect, provided his motion is made within a reasonable time, not exceeding six months, a fortiori he should be relieved on motion made within the same time when he has been guilty of no neglect.
None of the decisions cited are in conflict with this view. They merely hold that judgment will not be vacated upon motion made after the lapse of the prescribed period, unless it is void upon its face, which is quite consistent with the proposition that a motion made within the statutory period may be granted as well when the defendant is wholly without fault as when he has been guilty of neglect, mistake, etc.
As to the conditions upon which the order should be made, the statute only requires the imposition of such terms as may .be just; and when, as in this case, the court finds that the defendant has never been brought within its jurisdiction, it would not be just to require it to answer to the merits, or to make an affidavit of merits.
Upon these grounds, I concur in the judgment.
The following is the decision, above referred to, rendered in Department Two, by Mr. Commissioner Belcher, July 30, 1892: —
Belcher, C. This is an action to recover the value of two horses which were delivered by plaintiff to defendant, at the town of Hiawatha, in the state of Kansas, to be transported to the town of Escondido, in the state of California, and which were killed while in transit over the defendant’s railroad to their place of destination. The complaint is in the usual form, and alleges negligence in the management of the engine and train of cars as the cause of the killing. The complaint was filed in the superior court of San Diego County, and a summons was thereupon issued and placed in the hands of the sheriff of that county. By his return on the summons, the sheriff certified that he “personally served the same, on the nineteenth day of November, 1890, on K. H. [395]Wade, general manager of the Atchison, Topeka, and Santa Fé Eailroad Company, defendant therein named, by delivering to said defendant personally, in the county of San Diego, a copy of said summons, attached to a certified copy of the complaint in the action therein named.” No demurrer or answer having been filed, the default of the defendant was entered by the clerk of the court, on December 1, 1890. Three days later, the case was called for trial, and, after witnesses had been called and examined by the plaintiff, judgment was entered in his favor, according to the prayer of the complaint. The judgment recites that the cause came on regularly for trial, the plaintiff appearing by counsel, and the defendant, a corporation, “ having been personally, legally, and regularly served with summons or process, and having failed to appear and answer plaintiff’s complaint filed herein, and the legal time for answering having expired, and no answer or demurrer having been filed, the default of said defendant .... having been duly and legally entered against said defendant according to law,'—now, therefore,” etc. On the 12th of December, 1890, after due notice, the defendant appeared by attorneys, and moved the court to quash the service of summons and to vacate and set aside the said default and judgment, upon the ground that the said service was not such as was authorized by law, and that the court had no jurisdiction of defendant to enter said default or judgment, and that the same was void. In support of the motion, the defendant offered to read in evidence — the affidavits of K. H. Wade and A. Brunson, copies of which had been served. The plaintiff objected to the affidavits being received in evidence, “ for the reason that the judgment imports absolute verity, and cannot be attacked by proof aliunde.” The objection was overruled, and an exception reserved. The hearing was then continued, and subsequently the plaintiff, not waiving his objections to the defendant’s affidavits, introduced and read in evidence certain counter-affidavits, and the defendant introduced and read certain additional affi[396]davits. All of the affidavits offered were received and considered by the court; and as the result of such consideration, the court, on January 23,1891, made an order granting the defendant’s motion, and thereby quashed the service of summons, and vacated and set aside the default and judgment entered against defendant. The plaintiff excepted to the order, and has appealed therefrom to this court.
1. Appellant contends that the judgment of a court of general jurisdiction imports'absolute verity, and that, on a motion, like this, to set aside a domestic judgment, the parties to it are estopped to deny the jurisdiction of the court, unless its want of jurisdiction appears on the face of the record; that here the recitals in the judgment that the defendant had been personally, legally, and regularly served with process conclusively show that the court had acquired jurisdiction of the person of defendant, and that no evidence outside the judgment roll was admissible to contradict hc..e recitals, and hence that it was error to admit in evidence the affidavits offered by defen dam and objected to by plaintiff. This position cannot, in .our opinion, be sustained. The code provides that “ any judicial record maybe impeached by evidence of a want of jurisdiction in the court or judicial officer,” (Code Civ. Proc., sec. 1916,) and the only question is as to the method of procedure to effect the impeachment. The .rule invoked is well sustained by the authorities, where a collateral attack is made upon a judgment, but it has no application to a direct attack. Here the motion to set aside the judgment was a direct, and not a collateral, attack, as has been held in numerous cases decided by this court. (People v. Mullan, 65 Cal. 396; People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448; People v. Pearson, 76 Cal. 400; Reinhart v. Lugo, 86 Cal. 395; 21 Am. St. Rep. 52.) In Lyons v. Roach, 84 Cal. 30, it is said that “the main difference between collateral and direct attacks is, that in the former the record alone can be inspected, and is conclusively presumed to be correct; while on direct attack the [397]true facts may be shown.” But it is urged that a judgment can only be set aside on motion when it appears on its face to be void, and that when it does not so appear, the proper and only remedy is an action regularly brought to test its validity. In support of this position, counsel cite People v. Goodhue, 80 Cal. 199, and People v. Harrison, 84 Cal. 607. In the first 'of these cases a decree of foreclosure was rendered therein on October 30, 1865, and a motion to set aside the decree was made on December 31, 1888, by the successor in interest of the defendant. The summons was served on Goodhue, the defendant, but not on his successor in interest. The court said: “We know of no provision of law which can be held to authorize the vacation of a judgment on a mere motion after so long a time ”; and again: “A judgment cannot be attacked in this informal way years after its rendition.” In the second case the motion to vacate was made sixteen years after the judgment was rendered, and it was held that a motion will not lie to vacate a judgment after the lapse of time limited by statute, if the judgment is not void on its face, and that in all cases after the lapse of such time, when the attempt is made to vacate the judgment by a proceeding in court for that purpose, an action regularly brought is preferable, and should be required. Here the motion was made within ten days after the judgment was rendered, and the cases cited are therefore not in point. In a case like this, the proceeding by motion is, in our opinion, authorized, and is the proper way to bring up and test the validity of the judgment. (Ede v. Hazen, 61 Cal. 360.)
2. Appellant further contends that the decision of the court was not justified by the evidence, and that the order should be reversed for that reason. Section 411 of the Code of Civil Procedure provides that “the summons must be served by delivering a copy thereof, as follows: . ... 2. If the suit is against a foreign corporation . . „ . doing business and having a managing or business agent, cashier, or secretary within this state, to such [398]agent, cashier, or secretary.” It was shown, by the affidavits introduced in support of the motion, that the defendant, the Atchison, Topeka, and Santa Fé Railroad Company, was a corporation organized under the laws of the state of Kansas, and having its principal place of business at the city of Topeka, in that state; that it owned, controlled, and operated a line of railroad from Kansas City, in the state of Missouri, to Albuquerque, in the territory of New Mexico, and no farther; and that K. H. Wade, on whom the summons was served, was not at the time of such service, and never had been, the managing or business agent, cashier, or secretary of defendant, within this state, or anywhere else. It -was also shown that the Atlantic and Pacific Railroad Company was a corporation organized under an act of Congress, and that it owned and operated a railroad from Albuquerque, New Mexico, to the town of Barstow, in the state of California; that the Southern California Railway Company was a corporation organized under the laws of this state, and that it owned and operated a railroad from Barstow to National City, and other points in California; and that K. H. Wade was the general manager of the last-named company. It was further shown that the three railroads above mentioned constituted a continuous line, and were advertised as such under the name of the “Santa Fé Route,” but that the officers of the companies were different, no two of them having the same president, general manager, or other business agents; “that each of said three railroad companies is owned, controlled, and operated independently of the other, under different organizations, with different stockholders and different interests; that the accounts between them are kept as distinctly and separately as are the accounts of any other of the railroads in the United States; that the three companies receive freight and passengers independent of the others, and only deliver to the others as connecting lines, forming a through-line of railroad, known as the ‘ Santa Fé Route’ ”; and that “the appellation ‘Santa Fé Route’ does not, and [399]never did, designate either of the corporations operating such line of railroad, but is simply a term used to designate a particular line of travel composed of connecting railroads operated by distinct railroad companies.” Appellant sought to contradict and overcome the evidence introduced by respondent, by showing numerous advertisements of the “Santa Fé Eoute,” to some of which the name, “ K. H. Wade, General Manager,” was appended, and also by showing that the defendant was the owner of a majority of the stock of the Southern California Eailway Company. It is urged that Wade is estopped by these advertisements from denying that he was one of the general managers of the defendant corporation, and “that the evidence clearly establishes the fact that the ‘Santa Fé Eoute’ is a synonym of the ‘Atchison, Topeka, and Santa Fé Eailroad Company,’ and is used by it to designate its great system, which stretches from Chicago to San Diego, over which through sleeping-cars run from Chicago and St. Louis to San Diego, without change, every day in the year.” There can be no question of estoppel here. Wade is not a party to the action; and whether he might be estopped or not by his acts, in connection with the advertisements, to deny his agency, is a matter which need not be considered.
The only question, then, is, Was Wade the managing or business agent, cashier, or secretary of the defendant when the summons was served on him? If he was not, then the attempted service did not give the court jurisdiction of the person of the defendant, and its judgment was void. Whether he was such agent or not was a matter to be determined by the court below, in view oi all the evidence introduced at the hearing of the motion. The court, as we have seen, decided the question against the theory of appellant, and we do not think its decision can be disturbed. The evidence was conflicting, but a clear preponderance of it seems to sustain the decision.
It is further objected that no sufficient affidavit of merits was filed. We do not think it necessary to pass [400]upon this question, for the reason that, when a judgment is attacked upon the ground that it is wholly void, no affidavit of merits is required. We therefore advise that the order be affirmed.
Vanclief, C., and Haynes, C., concurred.