Tucker v. Tucker

DRAPEAU, J. pro tem. Plaintiff filed his complaint for divorce in the superior court of this state August 31, 1941. The defendant was a non-resident of California. Order for publication of summons was made August 19, 1941. The residence of the defendant being known, summons and complaint were personally served upon her in the State of Oklahoma August 28, 1941. By order of the court default of the defendant was entered December 23, 1941. On the same date, the case was tried as a default matter, and interlocutory judgment of divorce was made and entered.

December 9, 1942, the trial court denied a motion by the defendant to vacate and set aside the default judgment. This motion was presented in accordance with the provisions of section 473a of the Code of Civil Procedure. It was based upon the affidavit of the defendant, dated November 27, 1942, a proposed answer to be filed by the defendant, and the records, files and papers in the case. There was no counter-showing on the part of the plaintiff. Defendant has appealed from the order denying said motion.

Section 473a of the Code of Civil Procedure is short, and it is just as well to quote it in full: “ [Answer of defendant not served]. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.”

The last phrt of section 413, Code of Civil Procedure, provides: “When publication is ordered, personal service of a copy of the summons and complaint out of the State is equiva[559]lent to publication and deposit in the post office, and in either case the service o£ the summons is complete at the expiration of the time prescribed by the order for publication.”

The defendant was personally served in the State of Oklahoma with summons and complaint, in accordance with this provision of section 413, Code of Civil Procedure. Was she “personally served” so as to bring her within the purview of section 473a, Code of Civil Procedure, and entitled to an order vacating and setting aside the default judgment?

To attempt to reason logically from the premise that defendant knew of the pendency of the action and was therefore personally served would not be proper because in such cases as Palmer v. Lantz, 215 Cal. 320 [9 P.2d 821], and Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192 [106 P. 715, 21 Ann. Cas. 1279], mailing a copy of the complaint and summons is held not to be personal service.