Borges Dusters, Inc. v. Southmost Aviation, Inc.
| Decision Date | 20 June 1957 |
| Citation | 312 P.2d 712,152 Cal.App.2d 25 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BORGES DUSTERS, Inc., Plaintiff and Appellant, v. SOUTHMOST AVIATION, Inc., Defendant and Respondent. Civ. 5443. |
Mobley M. Milam, Calexico, for appellant.
Sturdevant & Morrow, El Centro, for respondent.
This is an action for damages to an aircraft owned by plaintiff. It is alleged in the complaint that on or about April 8, 1954, while said aircraft was parked at the Calexico Airport, an agent and servant of defendant, Southmost Aviation, Inc., carelessly and negligently caused an aircraft of said defendant to collide with the plaintiff's aircraft, damaging it in the sum of $1,029.10. It is further alleged, on information and belief, that the defendant, Southmost Aviation, Inc., was a corporation organized and existing under and by virtue of the laws of the State of Texas and that at all times mentioned therein said corporation was engaged in doing business in the State of California.
Pursuant to an affidavit filed by the attorney for plaintiff, the trial court ordered that service of the summons and complaint on the defendant be made by personal delivery to the Secretary of State as provided in section 6501 of the Corporations Code. Service of the summons and complaint in this manner was effected by the sheriff of Sacramento county on January 11, 1956. Southmost Aviation, Inc., made a special appearance in the action and moved the court to set aside the said service of summons. This motion and supporting affidavit are not included in the clerk's transcript. It is stated in respondent's brief, and is not denied by the appellant that the motion was made on the grounds that the defendant 'was not then, and never had, done business in the state of California.'
The clerk's transcript shows that on March 29, 1956, the following ruling was made by the court:
'The hearing on the motion to set aside service of summons in the above entitled action having been heretofore argued and submitted to the Court, at this day, it is by the Court ordered that said motion be and the same is hereby granted.'
On April 5, 1956, the following formal order was signed by the court:
'On reading and filing the affidavit filed herewith, and on motion of Charles F. Sturdevant, Jr., for the defendant, Southmost Aviation, Inc., and after hearing Mobley M. Milam in opposition thereto;
'It Is Hereby Ordered, that the service of summons as to Southmost Aviation, Inc., in the above-entitled action be set aside and vacated.'
Plaintiff appeals from this last mentioned order and contends that there was no basis for the court's ruling thereon. We are not in accord with this contention. The record on appeal here consists only of the clerk's transcript and on such an appeal the question of the sufficiency of the evidence to support the order is not open. It can only be attached for errors which affirmatively appear on the face of the judgment roll and here we must presume that in the oral proceedings and hearing on the motion there was substantial evidence to support the order. ...
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