Hollywood Garment Corp. v. J. Beckerman, Inc.

Plaintiff has appealed from an order setting aside a default judgment against defendant.

It is alleged in the complaint, filed on October 27, 1941, in which a cause of action is set forth for the alleged breach of a written contract to deliver merchandise, that defendant is a foreign corporation and that at all times mentioned in the complaint it “did business in the State of California.” An affidavit was filed on August 28, 1942, by plaintiff’s attorney in support of an application for an order for service of summons under section 406a of the Civil Code. In this affidavit it is stated that defendant is a foreign corporation with its principal offices at 152 Madison Avenue, New York City, that no agent had been designated upon whom process could be served and that after due search no agent or other officer of defendant corporation could be found in California. Thereupon an order was made by the superior court authorizing service of summons upon the secretary of state in accordance with the terms of section 406a of the Civil Code. The default of defendant was entered on October 27, 1942, and on the same date judgment was entered in favor of plain

A corporation is a resident of the state in which it is created. The process of the court of another state cannot reach a New York corporation so long as it confines the exercise of its corporate business within the state of New York. But it is generally provided by statute that when a corporation conducts business in a state other than that of its creation it is amenable to the process of the courts in the states where it conducts business. (Jameson v. Simonds Saw Co., 2 Cal. App. 582 [ 84 P. 289 ].) In California sections 406 and 406a of the Civil Code provide for the designation of an agent by a foreign corporation doing business in the state and for the service of process on a corporation doing business within the state which has failed to designate an agent for such purpose. Although plaintiff alleged in the complaint that defendant was doing business in California, this allegation was subject to refutation by defendant. In the affidavit filed in support of the motion to vacate the judgment it is positively stated that defendant corporation at no time maintained an office or show room in the State of California or conducted any business therein and that the transactions referred to in plaintiff’s complaint were consummated in the States of New York and Pennsylvania. The issue was thus fairly presented to the court and plaintiff had the opportunity to prove its allegation that defendant was doing business in California. But no counter affidavit was filed. Under the circumstances the court properly granted defendant’s motion.

Plaintiff argues that since defendant’s motion was made after the entry of the default of defendant, a collateral attack is being made upon plaintiff’s judgment. In this plaintiff is in error. Defendant made a direct attack upon the judgment and the trial court properly received its affidavit in support of the motion to vacate. (Shelley v. Casa De Oro, Ltd., 133 Cal.App. 720 , 722 [ 24 P.2d 900 ].) Defendant did not forfeit its right to object to the jurisdiction of the court by its failure to appear before the entry of the default

The order is affirmed.

Moore, P. J., and McComb, J., concurred.