Summary
In Hogs Back Consol. Min. Co. v. New Basil Consol. Min. Co., 63 Cal. 121, the affidavit failed to state the residence of the respective parties, the court holding the affidavit insufficient, and further added: "The affidavit of service was insufficient, and therefore, default in the case was improperly entered."
Summary of this case from Carlon v. GrayOpinion
APPEAL from a judgment of the Superior Court of Placer County.
The plaintiff and defendant are corporations. The action was brought in the Superior Court of Placer County. The defendant demurred to the complaint, and the plaintiff confessed the demurrer, and obtained leave to amend within twenty days. An amended complaint was filed accordingly, with an affidavit attached showing an attempted service by mail. A judgment by default was entered against the defendant for failing to answer the amended complaint. The additional facts appear in the opinion of the court.
COUNSEL:
W. R. Daingerfield, and Edward Lynch, for Appellant.
Hale & Craig, for Respondent.
OPINION
PER CURIAM.
In this case plaintiff had judgment against defendant by default; the court below denied a motion to open the default, and defendant appealed.
The following is the affidavit of service of the amended complaint:
" D. W. Spear of said Placer County, being duly sworn, says: That he is a citizen of the United States, and is, and was on the 20th day of October, 1881, over eighteen years of age, and not a party to this action. That on the 20th day of October, 1881, the amended complaint in the said action was filed; that forthwith, to wit, on the 20th day of October, 1881, he, affiant, deposited in the postoffice at Auburn, Placer County, California, a copy of the said amended complaint, enclosed in a sealed envelope, postage prepaid, and directed to Edward Lynch (the attorney for defendant herein), at No. 324 Pine Street, San Francisco, California, the place where said attorney resides and has his office."
The affidavit of service was insufficient, and therefore the default in the case was improperly entered. ( Reed v. Allison, 61 Cal. 461; Cunningham v. Warnekey, 61 Cal. 507; Moore v. Besse, 35 Cal. 185; People v. Alameda T.R. Co. 30 Cal. 182; § 1012, Code Civ. Proc.)
Judgment reversed, and cause remanded with leave to appellant to file an answer to the complaint within twenty days after the filing of the remittitur herein in the court below.