Quigley v. Ellenwood

82 P. 974, 1 Cal. App. 626, 1905 Cal. App. LEXIS 172

• Court: California Court of Appeal
• Decided: September 22, 1905
• Docket: No. 66.
• Status: Published

Opinion

COOPER, J.

Unlawful detainer.

Judgment by default was entered against defendant, from which he appeals.

Summons was issued May 21, 1902, and on the same day the plaintiff filed an affidavit, stating that personal service could not be made for the reason that defendant could not be found, and was concealing himself to avoid service. The judge thereupon made an order directing that service be made by publication in a daily newspaper published in San Francisco, commencing with the twenty-first day of May, until and including the twenty-sixth day of May, 1902, and "directing that the summons be returned on the twenty-sixth day of May, 1902, which was the return day named in the summons.

The summons was not served until the completion of the period of time prescribed for its publication,—that is, May 26, 1902. Judgment by default was entered May 28, 1902.

The code provides (Code Civ. Proc., sec. 1166) that the summons must be “returnable at a day designated therein, which shall not be less than three days, nor more than twelve days from its date, except in cases where the publication of the summons is necessary, in which case the court or a justice thereof, may order that the summons be made returnable at such time as may be deemed proper, and the summons shall specify the return day so fixed. ’ ’

It is further provided (sec. 1167) that the summons must be “served at least two days before the return day designated therein.”

In this case the summons was not served until the return day, that being the day when the publication was complete. The law contemplates that the defendant in any case shall have two days after the summons is served in which to answer. “If, at the time appointed, the defendant do not appear and defend, the court must enter his default, and render judgment in favor of the plaintiff, as prayed for in the complaint.” (Sec. 1169.) Defendant did not appear and defend at the time appointed, but he had not been served with the summons at said time. He was not served until the expiration of the last day of publication, May 26th. He was not then given two days to appear and answer or defend, for the judgment was entered and recorded May 28th.

In taking a judgment by default the plaintiff acts at his peril. He must see that the law has been complied with and that the time for appearance has expired. Otherwise he takes the chances of having his judgment set aside or reversed.

The judgment is reversed and the default set aside and the court below directed to allow defendant two days to appear or answer.

Harrison, P. J., and Hall, J., concurred.