Byrnes v. Johnson

WHITE, P. J. Defendant Olevia D. Johnson has appealed from an order denying her motion to vacate and set aside default, default judgment, and sale of property. Her motion was made upon the ground that the summons and complaint were never served upon her, and that she knew nothing of the action until on or about February 16, 1955. Notice of motion was filed March 30, 1955.

[445]The record includes the affidavit of C. S. Peck, made November 4, 1953, and filed April 2, 1954, that she served the summons and complaint by personally delivering to and leaving a true copy thereof with “Olevia D. Johnson, 2123 E. 112th St., L. A. Calif. Nov. 4 1953.”

Appellant’s notice of motion was accompanied by her own affidavit that she was never served with summons or complaint; that her first knowledge of the action was on or about February 16, 1955, when she received a letter from Referee R. E. Allen; that she did not reside at or visit 2123 E. 112th Street from September 15, 1953, to January 16, 1954; that she has stated all the facts to her attorney and is advised that she has a good, substantial and meritorious defense to plaintiffs’ demand, and that if a trial of the issues upon the merits were had a different result would be obtained.

Said notice of motion was further supported by affidavits of appellant’s husband and stepdaughter that she was not at the place where allegedly she had been served on November 4, 1953, or at any time between September 15, 1953, and January 16, 1954. Her stepdaughter also averred that on November 4, 1953, she, the said stepdaughter, resided at 2123 East 112th Street, where she answered the doorbell and was handed some papers by an unidentified woman; that she thought the papers were of no importance; that she was at the time interested in a television program; that she threw the papers on the table in the living room; that she never saw them again; and that they may have been burned with the newspapers which were on the table. Also in the record is the affidavit of appellant’s sister that appellant lived with her at 10822 Croessus Street from September 15, 1953, to January 16, 1954.

In opposition to appellant’s motion, affidavits of respondents ’ attorney and Charlotte S. Peck, the process server, were filed. The affidavit of the attorney concerns a telephone conversation in July or August, 1954 with a man with a “Southern accent” who called him, said he was Tom Johnson, appellant’s husband, and inquired of him “Who is this Mr. Byrnes who was going to sell his property.” His affidavit contains no averment of service upon appellant and does not place her at 2123 East 112th Street on November 4, 1953. The affidavit of Charlotte S. Peck does not identify appellant as the person served by her; but is as follows: “. . . at said time and place the door was opened and there appeared in