J. L. Mott Iron Works v. West Coast Plumbing Supply Co.

McFarland, J. Each of the parties is a corporation. The action is for the recovery of the possession of certain personal property, or its value; and judgment by default was rendered for plaintiff. Afterward defendant made a motion for an order vacating and setting aside the judgment, and the default upon which it was entered, upon the ground that the court had never acquired jurisdiction of said defendant. The court denied the motion, and from the order denying it the defendant appeals.

The motion appealed from was not made upon the ground that the judgment was taken against appellant through its excusable neglect, etc., from which it might be relieved under section 473 of the Code of Civil Procedure, but it was based upon the alleged fact that there had never been any service of summons upon appellant, and that therefore there was no j urisdiction in the court to render the judgment.

The action was commenced on October 30, 1893, and proof was regularly made that service of the summons was duly made on the appellant at San Francisco, California, on December 20, 1893, by delivering a copy thereof, together with a copy of the .complaint, to [343]Fletcher. F. Ryer, who was then and there president of said defendant corporation. But appellant claims that at said time Ryer was not its president or officer of any kind.

The question, whether or not said Ryer was president of appellant, was one of fact for the court below; the court found that he was such president; and, unless the evidence on the issue was so one-sided against such finding as to show an abuse of discretion, we cannot disturb its conclusion. The case of appellant on this point rests entirely upon two affidavits, made by said Ryer, which were used on the hearing of the motion. In one of these affidavits he stated that on December 20, 1893 (the date of the service), and on October 80, 1893 (the date of the commencement of the action), and on April 17, 1893, he was not president or other officer, or director of the appellant, “and had not been for many months prior to said April 17, 1893.” In his other affidavit he stated that he “was, up to August, 1892, the president of said defendant, at which time he re-, signed, and since which time he has not been connected with the defendant as president or other officer, or otherwise.” But in contradiction of his affidavits, the plaintiff introduced certain testimony which he gave in December, 1884, in another case, in which he made an explanation of his asserted resignation as president in August, 1892, as follows: “Mr. Freidenrich. Q. How did you resign? Tell us just what you did. A. My impression is that I sent in a written resignation. Q,. Sent it in where? A. I directed it to the board of trustees of the West Coast Plumbing Supply Company, and I probably put it on the desk there. I don’t know. Q. Were you present at any meeting of the board at which this resignation was presented? A. No, sir. Q. Did you do anything more than write out a resignation, and leave it on the desk? A. Not that I recollect; no, sir. Q. That is all you did? A. So far as I can remember. Q. To whom did you deliver the resignation? A. I don’t remember. Q. Did you deliver it to anyone?