Stovel v. North Los Angeles Development Co. — 24 Cal. App. 729

Majority

p. 729

[Civ. No. 1491.

Second Appellate District.

June 6, 1914.]

H. ROY STOVEL, Respondent, v. NORTH LOS ANGELES DEVELOPMENT COMPANY (a Corporation), Appellant.

Headnote

Pleading—Amended Complaint—Sufficiency of Affidavit of Service.—An affidavit oi service of an amended complaint is not insufficient because reciting that the affiant served a copy of the amended complaint, instead of stating that he served the amended complaint by delivering a true copy thereof.

APPEAL from a judgment of the Superior Court of Los Angeles County entered by the clerk on the defendant’s default for failure to answer the amended complaint.

The facts are stated in the opinion of the court.

Hammack & Hammack, for Appellant.

Elliott L. Perkins, for Respondent.

This is an appeal from a judgment entered by the clerk of the superior court after entry of defendant’s default for failure to answer the amended complaint. The defendant had appeared by its attorneys, who filed a demurrer to the original complaint. With respect to the amended complaint the affidavit of service is by plaintiff’s attorney and states that he “served a copy of the amended complaint herein on Hammack & Hammack, attorneys for the defendant herein, by delivering to and leaving with said attorneys in the city of Los Angeles, a true copy thereof.” This affidavit is sufficient, unless it is deficient in saying that the affiant served a copy of the amended complaint, instead of saying that he served the amended complaint, by delivering the true copy thereof. The briefs do not refer us to any decisions bearing upon this question. - We find that section 410 of the Code of Civil Procedure, says that “a copy of the complaint must be served, with the summons, upon each of the defendants. When the summons is served ... it must be returned . . . with an affidavit ... of its service, and of the service of a copy of the complaint, where such copy is served. ’ ’

p. 730

Under this wording of the statute there seems to be no doubt that an affidavit showing that the process-server served “a copy of the complaint,” etc., would be sufficient. No good reason appears for holding that the same form of statement may not be made in proving service of an amended complaint. “All pleadings subsequent to the complaint, must be filed with the clerk, and copies thereof served upon the adverse party or his attorney.” (Code Civ. Proe., see. 465.)

The judgment is affirmed.

James, J., and Shaw, J.. concurred.