Holiness Church of San Jose v. Metropolitan Church Ass'n

This is an appeal from an order refusing to set aside a default judgment.

On June 14, 1906, respondent commenced an action against the Metropolitan Church Association, a foreign corporation, and others, for the purpose of obtaining a judgment, decreeing that respondent is the owner of certain described real property in Santa Clara county, and that the appellant, Metropolitan Church Association, is the holder of the title thereto in trust for the respondent. The summons, which was duly issued on the day the suit was commenced, was, according to the return thereon, served on March 16, 1908, by the sheriff of Sacramento county on said appellant, by delivering a copy thereof, attached to a copy of the complaint, to the Secretary of State. On June 24th following (the ap

The affidavit filed by the appellant in support of this motion, which is undisputed, states that said corporation was never aware or had any knowledge of any attempted substituted service upon it through the Secretary of State of California until the day following the entry of the judgment, and said appellant did thereupon immediately and has continued since to take all available, prompt and necessary steps to have this default and judgment against it set aside.

The ground of the motion is that the summons was not personally served upon the appellant, and it is based on that part of section 473 of the Code of Civil Procedure which reads as follows: “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 representative, 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 motion here was made immediately after the entry of judgment, and if the service of the summons in the case may be regarded as constructive and not personal, then the appellant, without any showing of mistake, surprise, inadvertence, or excusable neglect, was entitled as a matter of absolute right to have the judgment vacated and set aside, and the court was without any discretion in the premises. (Gray v. Lawlor, 151 Cal. 352 , [ 90 Pac. 691 ]; Zobel v. Zobel, 151 Cal. 98 , [ 90 Pac. 191 ]; Hoffman v. Superior Court, 151 Cal. 385 , [ 90 Pac. 939 ].)

But respondent contends that appellant was personally served. It argues that foreign corporations doing business in this state are subject to every constitutional condition imposed upon them by the state, and that when the appellant corporation had been engaged in business here for a period of forty days without having designated a person, residing within the state, on whom process might be served, under section 405 of the Civil Code, as the section then read, it must be deemed to have assented to such service being made upon

Here, according to the affidavit and the proposed verified answer, the appellant knew nothing of the pendency of the action until after the entry of judgment, divesting it of the legal and equitable title to the land which stood of record in its name. The portion of section 473 relied upon by appellant was intended to cover just such cases as this one. If the legislature had intended that the delivery of process to the Secretary of State should be regarded as tantamount to personal service upon the corporation as distinguished from constructive service, doubtless it would have expressly so declared, as is done, we believe, in some states, and as is the case in this state in reference to foreign fire insurance companies doing business here. (Pol. Code, sec. 616.)

The order appealed from is reversed.

Hall, J., and Cooper, P. J., concurred.