Norton v. Atchison, Topeka, & Santa Fé Railroad

Citations

• 97 Cal. 388
• 32 P. 452
• 1893 Cal. LEXIS 553

Syllabus

<p>Vacating Judgment by Default — Jurisdiction of Person — Non-resident Defendant — Service of Summons — False Return—Remedy by Motion. — Where a non-resident has not been personally served with summons within the state, and a default judgment has been entered in the action, the court has power, within a reasonable time, when it finds that it has been deceived by a false return of such service within the state, to quash the service of summons and vacate the default and judgment upon motion; and it is not necessary to bring an independent action to set aside the judgment. Any fact going to show the invalidity of the judgment can he presented at the hearing of the motion.</p> <p>Id. — Basis of Motion — Construction of Code — Affidavit of Merits. — The motion to set aside such judgment is based upon irregularity, and want of jurisdiction in fact, and not upon the mistake, inadvertence, surprise, or excusable neglect of the moving party. Section 473 of the Code of Civil Procedure has no application to such a case, and it is not necessary that the motion he accompanied by an affidavit of merits.</p> <p>Id.—Time of Motion.— Terms of Court — Reasonable Time.—Under our present system, terms of court are abolished, and a motion to set aside a judgment must he made within a reasonable time. It seems that, following the analogy of section 473 of the Code of Civil Procedure, six months may he considered the extent of a reasonable time to set aside a judgment rendered upon a false return of service of summons.</p> <p>Id. — Conflicting Evidence upon Motion — Appeal. — Where the evidence is conflicting as to whether or not the defendant was served with summons within the state, the appellate court will not disturb the find ing of the court as to that fact..</p>