Watts v. D. & B. Oil Co.

DESMOND, P. J. The plaintiff in this case, as assignee of a series of notes and a claim for money, secured a judgment by default against the defendant, a California corporation, on March 24, 1942. Counsel for defendant, appearing specially four months later, on July 23, 1942, gave notice of his intention to move to vacate the default entered in the action, as well as the default judgment, and to quash the purported service of summons. On August 27, 1942, the trial court denied said motion “without prejudice to the filing of a motion under Section 473 of the Code of Civil Procedure.”

Counsel for appellant made no motion under section 473 but appeals from the order and undertakes to state his case as follows: “The sole question involved in this appeal is whether service on the Secretary of State, instead of service on the officers of a domestic corporation, is provided for by [743]Section 411, Subdivision 1, of the Code of Civil Procedure, and, if so, is said section valid and constitutional. An examination of the transcript will disclose the fact that the appellant herein maintained its office in the City of Pasadena at all times involved in the litigation, and was listed in the telephone directory of the Los Angeles Extended Area at all times mentioned in the complaint; that plaintiff and plaintiff’s attorney knew the address of appellant and the whereabouts of its officers, but proceeded on the theory that Section 411, Subdivision 1, of the Code of Civil Procedure required service on the Secretary of State instead of on the officers of the corporation. ’ ’

Replying, the respondent states that “At the time the action herein was commenced and summons and complaint served, the only method available for service under Section 373 of the Civil Code upon a California corporation which had failed to file in the office of the Secretary of State a designation of agent upon whom process could be served was service upon the Secretary of State. The defendant had failed to file such a designation, and summons and complaint were served upon the defendant by serving the Secretary of State pursuant to the statute.”

Section 411 of the Code of Civil Procedure appears in title Y of part II of that code, under the caption, “Manner of Commencing Civil Actions, ’ ’ and subdivision 1 thereof, in the year 1942 when the instant case was filed, provided that summons must be served upon domestic corporations by delivering a copy to one of various named officers or a person designated for process or authorized to receive same “if the corporation is an insurance company or is subject to the jurisdiction of the Railroad Commission; if such corporation is a bank or trust company, to any of the foregoing officers or agents thereof, or to a cashier or an assistant cashier thereof; otherwise, pursuant to Section 373 of the Civil Code.” The defendant corporation in the instant ease is not an insurance company or subject to the jurisdiction of the Railroad Commission; it is not a bank or trust company; therefore, counsel for plaintiff undertook to effect service of summons by resort to section 373 of' the Civil Code under the direction contained in section 411 of the Code of Civil Procedure.