Thorndyke v. Jenkins

SHINN, J. In separate actions default judgments for damages were rendered against appellant R. B. Jenkins in favor of Maude Thorndyke and Edna D. MeKenney. Defendant made a motion in each case, after judgment, to quash service of summons and to vacate the judgment on the ground that no service had been made and, after denial of these motions moved in each case before a judge of another department to vacate the defaults and judgments under section 473 of the Code of Civil Procedure, on the grounds of alleged mistake and excusable neglect. These motions also were denied. Appeals from the several orders have been consolidated and are presented upon a single set of briefs.

The proof as to service was the same in each case, the motions to quash were heard together and may be treated by us as a single motion. Affidavits were filed on behalf of plaintiffs by deputy sheriffs to the effect that they had made repeated unsuccessful efforts to make service upon defendant [121]Jenkins before the process was placed in the hands of one Tetta Price for service. Tetta Price stated in her affidavit that, after several attempts to serve the papers, she stationed herself near defendant’s residence, that as defendant emerged from the rear door and started toward his garage she entered the adjoining yard with the summonses, complaints, and two subpoenas duces tecum in her hand; that when defendant saw her he exclaimed, “I won’t take it, I won’t take it; you’re too smart, but I won’t take it,” and that affiant then threw the papers, which were folded together and had a rubber band around them, over an openwork wire fence between the two yards and that they landed at the feet of defendant, as she said to defendant, “It doesn’t make any difference to me, Dr. Jenkins, whether you take them or not, they are court summonses.” It is not contended by appellant that the acts of Tetta Price, as stated in her affidavit, were insufficient to constitute legal service. The contention is that the court, upon the motion to quash, should have rejected the foregoing averments in the affidavit of the process server because they were denied in the affidavit of defendant and contradicted as to the manner in which the papers were thrown over the fence, in an affidavit by a neighbor who witnessed the proceedings. There is little more than a token argument upon ’the point. Counsel for appellant in their opening brief state, “. . . appellant recognizes that when an order or judgment finds support in facts determined by the trial court upon any substantial evidence, such order or judgment will not be disturbed on appeal.” The affidavit of the process server, stating in unequivocal terms the facts we have recited, considered with other evidence which tended to prove that defendant had been evading service, furnished substantial evidence to support the orders denying the motions to quash, and the implied finding that the facts were as stated in the affidavit is conclusive upon appeal.