Sternbeck v. Buck

307 P.2d 970, 148 Cal. App. 2d 829, 1957 Cal. App. LEXIS 2438

• Court: California Court of Appeal
• Decided: March 1, 1957
• Docket: Civ. 22042
• Status: Published

Opinions

MOORE, P. J.

The paramount question posed by this appeal is whether, according to the findings, the delivery by the process server to the defendant’s wife on the front driveway of their home of copies of summons and complaint and her promise to see that her “husband gets them” constitutes service of process, the husband having been out of view 100 feet distant in the rear, building a barn, process server having neither proceeded farther to the rear nor attempted to contact him.

Mr. and Mrs. Buck first sued appellant for damages to their automobile by reason of the allegedly wilful acts of appellant (action 624714, Los Angeles Superior Court) and no answer having been filed, a default judgment was entered against Sternbeck. He moved to be relieved of his default under Code of Civil Procedure, section 473, on the grounds of excusable neglect and want of personal service of the summons. Such motion having been finally denied on the ground that the time for the motion had expired, he brought this action in equity to vacate the default judgment on the same grounds alleged in his motion. Having heard the evidence, the trial court determined that the neglect of Stern-beck and his original attorney were not excusable, and that while the facts averred in Sternbeck’s complaint relative to the service of process were substantially correct, yet the service was legally complete. Appellant contends that the judgment in action 624714 had been entered without service of summons having been made.

Respondents contend that the denial of relief from the judgment under section 473 on the ground of excusable neglect is res judicata of appellant’s complaint. That claim is without support in law. Such action by a trial court is not res judicata of the allegations of a complaint in equity where the ruling is (a) based upon merely procedural or jurisdictional grounds or (b) the judgment is directly rather than collaterally attacked. (Lake v. Bonynge, 161 Cal. 120, 131 [118 P. 535].) It is obvious that both conditions are present in the instant controversy. The record in action 624714 discloses that the motion to set aside default judgment was denied because filed too late. It follows, therefore, that the order was not based upon the merits of the claim. Nothing was decided relative to the validity of the 'judgment attacked except that it was too late to pursue the special remedy provided by section 473.

Also, the present attack on the judgment is by an equitable action. The doctrine announced by Lake v. Bonynge, supra, to wit, that an order made in response to a motion is not res judicata of a direct attack, has been held in numerous decisions. (Newman v. Barnet, 165 Cal. 423, 426-427 [132 P. 588] ; Bacon v. Bacon, 150 Cal. 477, 484-485 [89 P. 317] ; Estudillo v. Security Loan & Trust Co., 149 Cal. 556, 564-565 [87 P. 19]; Wilson v. Wilson, 55 Cal.App.2d 421, 426 [130 P.2d 782] ; Winn v. Torr, 27 Cal.App.2d 623, 627 [81 P.2d 457] ; Anglo California Trust Co. v. Kelley, 117 Cal.App. 692, 695 [4 P.2d 604].) An action in equity to set aside a judgment entered in a prior action is treated as a direct rather than as a collateral attack. (Bacon v. Bacon, supra-Wilson v. Wilson, supra.) In the interest of accuracy, some courts have chosen to designate the attack as “indirect.” (See Le Mesnager v. Variel, 144 Cal. 463, 467 [77 P. 988, 103 Am.St.Rep. 91].) However, in any event, the same results flow as on direct attack.

It thus becomes necessary to determine whether the alleged service of summons in the original action operated to confer upon the court personal jurisdiction of Sternbeck. The findings in the instant action indicate that compliance with all requisites of an action in equity to annul a judgment has been observed if indeed such service was insufficient. Service of summons in conformance with the mode prescribed by statute is deemed jurisdictional. Absent such service, no jurisdiction is acquired by the court in the particular action. (Chaplin v. Superior Court, 81 Cal.App. 367, 371 [253 P. 954] ; Witkin’s California Procedure, p. 329.)

Section 411, Code of Civil Procedure, in its first eight subdivisions prescribes with meticulous care the manner of service upon corporations, joint stock companies, minors, insane persons, cities, dissolved corporations, a state board, a candidate for public office who cannot be found within the state. By subdivision 9, it provides that 1 ‘ In all other cases [a copy of the summons must be delivered] to the defendant personally.” In the Chaplin case, supra, it was held “that in the absence of service of process on the defendant” orders made against him are void. “Personal service” means the actual delivery of the papers to the defendant in person. (Holiness Church v. Metropolitan Church Assn., 12 Cal.App. [107 P. 633]; Hunstock v. Estate Development Corp., 22 Cal.2d 205 [138 P.2d 1, 148 A.L.R. 968].) In considering the appropriate method of serving a corporation, the court in the Hunstock case reasoned that “delivery” of process connotes manual tradition to the person to be served and that ‘1 delivery” is identical with “the common law rule of personal delivery” as provided for in Code of Civil Procedure, section 411. Although the strict requirements of manual tradition of the papers are relaxed when the defendant attempts to flee the approaching process server (see In re Ball, 2 Cal.App.2d 578 [38 P.2d 411], where the process was thrown at the retreating defendant; Trujillo v. Trujillo, 71 Cal.App.2d 257, 259-260 [162 P.2d 640], where the papers were placed in the windshield wiper of defendant’s retreating automobile), no such problem was presented in the instant case. In fact, appellant seems to have been perfectly amenable to proper service. He was within easy reach of the deputed process server who chose not to walk 100 feet to deliver the summons.

The vast majority of jurisdictions possessing statutes requiring that a party be served “personally” or “personally served” hold that a “substituted service” upon a member of the defendant’s family at the residence of the defendant does not suffice to confer personal jurisdiction upon the court. (Note, 172 A.L.R. 521.) Research of California authority does not disclose any reason to depart from these holdings. As mentioned above, section 411 enacts “the common law rule of personal delivery.”

Respondent contends that since this action is one in equity, the only question to be determined is whether or not the defendant actually received the papers which would have given notice of the suit. Such contention ignores the plain verbiage of the statute and in effect asks the court to rewrite section 411 by adding to subdivision 9 substantially the following: “but when a summons is not personally served, the trial court may ascertain whether the defendant ultimately came into possession of the summons and if so, there was satisfactory compliance with the section.” Such action would be a judicial rewriting of a statute. The Legislature is available for that service. An action in equity to set aside a judgment is a direct attack upon it just as a motion under section 473 or an appeal. In fact, should the time for appeal or motion have expired, such an action is the only direct attack available. In all events, it is the most practicable mode since it is difficult to obtain proof of lack of service other than by affidavits. Therefore, exactly as on motion or appeal, if service in the original action has not been made within the provisions of section 411, the court has no jurisdiction whatsoever over the defendant, its judgment is a complete nullity and should, after proper proceedings, be set aside. Merely because an action sounds in equity, it does not justify the court in rewriting the code sections relating to personal jurisdiction by proclaiming that “substituted service” is just as good as “personal service” where the defendant in fact receives the papers. If such reasoning were sound, service by mail would similarly suffice where the defendant actually opened the envelope and received the documents. It is for the Legislature, not the courts, to liberalize the techniques of serving process if it be deemed to be in the best interests of the administration of justice.

The frailty of respondent’s thesis is verified by the solitary authority cited, to wit, Vail v. Jones, 209 Cal. 251 [287 P. 99]. At first blush, it implies that service upon a member of Ms family might be deemed service upon the defendant. But, a close inspection indicates that the court studiously detoured around such a commitment. The trial court in that case found that the purported process server did not in fact serve the defendant but that the defendant had already been “served.” The record presented conflicting testimony. Its gist was that the defendant was an invalid whose daughter handled all her business affairs; the process server knocked on the door; the daughter answered, the defendant was in another room in the four-room house, possibly within sight of the door; the daughter took the summons. The court held that this evidence could raise “inferences” to justify the frnriimg of service—for example, perhaps, that the daughter was the defendant’s agent or that the server was in the presence of the defendant. Thus, the court there laid down no rule for the guidance in future controveries. No court since the rendition of the Vail decision has ventured to hold that section 411 authorized any other mode of service than the delivery of the summons to the defendant in person as explicitly required by the code. (See discussion in Witkin on California Procedure, p. 811.) In effect, the opinion merely stands for the proposition that in the particular record there presented, sufficient inferences of due service to support a finding of service existed.

Respondent cites authority to the effect that it is the fact and not the proof of service which confers jurisdiction upon the court. They are not in point. The findings of the trial court illustrate that there was no delivery of a copy of summons and complaint in fact and thus no service and no jurisdiction was acquired to render default judgment in action Number 624714.

However, the testimony of Mr. Smith, the process server, is that Mr. Sternbeck’s wife accompanied him to the rear of the yard where he met Mr. Sternbeck, and that they were within approximately 3 feet of each other. Smith testified that he there informed Mr. Sternbeck that he had a copy of a summons and complaint for him. He testified: “I reached out, quite certain that I touched his body with the papers. And he said, ‘No. Give it to my wife.’ And I handed the papers to Mrs. Sternbeck in his presence.” Evidently the trial court did not believe Smith’s testimony that he reached out and was quite certain that he touched “his body with the papers” and that he “handed the papers to Mrs. Sternbeck in his presence.” Now, if, as Mrs. Sternbeck testified, Smith gave the papers to her at the entrance of the driveway on her promise that she would give them to her husband, he was not authorized to depute the wife or any other person to give the summons and complaint to Mr. Sternbeck. Potestas delegata non delegcmda, potest is a principle as old as the law itself. Mr. Smith testified that he was serving all the papers of Mr. Duskin, attorney for Buck, “at that time.” In that event, he had no authority to leave the summons with Mrs. Sternbeck on any promise she might make.

Of course, Mr. Smith’s testimony if believed upon retrial, would support a finding of personal service. (See In re Ball, 2 Cal.App.2d 578, 579 [38 P.2d 411]; Thorndyke v. Jenkins, 61 Cal.App.2d 119, 121 [142 P.2d 348].)

The judgment is reversed.

Pox, J., concurred.