Lapham v. Campbell

Citations

• 61 Cal. 296
• 1882 Cal. LEXIS 601

Syllabus

<p>Action for Relief againt a Judgment on the Ground of Fraud—New Trial in Equity.—Action for relief against a judgment alleged to have been obtained by fraud. From the allegations of the complaint it appeared that judgment by default was entered against the plaintiff upon a false affidavit made by a person qualified in law to serve a process, that he had served the summons personally upon the defendant, in the State of California; but that in fact the summons was served upon the defendant in the State of Nevada; that the plaintiff had no notice of the entry of the judgment against him until more than a year after its date; and that the cause of action upon which the judgment was rendered did not exist. Held, that the demurrer to the complaint was improperly sustained.</p> <p>Id.—Id.—Jurisdiction.—(McKee, J.)—Where judgment is taken without due process of law, or upon false proof of service of process upon a defendant who was at the time of the alleged service beyond the territorial jurisdiction of the Court, he is not chargeable with knowledge of the rendition of the judgment; nor is he bound to apply within a year after its rendition to set it aside, and to be allowed to answer the complaint; for he is not bound to submit himself to a foreign jurisdiction.</p> <p>Id.—Id.—Myrick and McKinstry, JJ.—Assuming that under Section 473, C. O. P., the defendant in that action (plaintiff here) would have obtained relief if he had applied within six months, it is enough to say that he states sufficient reasons why the application was not made within that time.</p>