Eagle Elec. Mfg. Co. v. Keener

• Decision Date: 15 December 1966
• Docket Number: No. 30366,30366
• Citation: 55 Cal.Rptr. 444,247 Cal.App.2d 246
• Court: California Court of Appeals Court of Appeals
• Parties: EAGLE ELECTRIC MANUFACTURING CO., Inc., a corporation, Plaintiff and Respondent, v. Johnny KEENER, a Minor, by Billy Dale Keener, his Guardian Ad Litem, BillyDale Keener, Sally Keener, and William P. Clark, Jr., Defendants andAppellants. Civ. Division 1, California

Page 444

55 Cal.Rptr. 444

247 Cal.App.2d 246

EAGLE ELECTRIC MANUFACTURING CO., Inc., a corporation, Plaintiff and Respondent, v. Johnny KEENER, a Minor, by Billy Dale Keener, his Guardian Ad Litem, BillyDale Keener, Sally Keener, and William P. Clark, Jr., Defendants andAppellants.

Civ. No. 30366.

Court of Appeal, Second District,

Division 1, California.

Dec. 15, 1966.

O'Melveny & Myers, Rodney K. Potter, Los Angeles, for appellants.

Kadison & Quinn, John J. Quinn, Jr., Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff Eagle Electric Manufacturing Co., Inc., a New York corporation, qualified to do business in California, sued defendants Keener, William P. Clark and others to set aside a default judgment rendered against it in the Superior Court of the County of Ventura. Thereafter plaintiff's motion for entry of summary judgment was granted. Defendants appeal from judgment vacating the Ventura judgment entered on the order.

The instant proceeding had its genesis in a personal injury action filed in the Ventura Superior Court on April 3, 1962, by defendants Keener against plaintiff corporation and others not here involved (action against them is pending trial); defendant Clark was attorney for the Keeners. On October 17, 1962, Clark filed his 'Declaration in Support of Order for Service of Process on Secretary of State Pursuant to Corporations Code Sec. 6501' (attached to motion for summary judgment as Exh. 1) asserting that J. Barrett Cohen, William Garland Building, Los Angeles, California, is the designated agent of plaintiff for service of process and that 'said agent cannot be found with due diligence at the address stated in the designation,' resulting in an order that service be made by personal delivery of process to the Secretary of State. On December 20, 1962, default of plaintiff corporation was entered, the cause was heard as a default and on December 24, 1962, judgment was entered against it for $326,218.70. On February 14, 1964, writ of execution issued to satisfy the judgment out of plaintiff's personal property. No notice of entry of judgment, actual or constructive, was given to plaintiff corporation until fourteen months (Feb. 17, 1964) after entry.

Attached to plaintiff's motion for summary judgment (Exh. 2) is Designation of Representative in the State of California filed in the office of the Secretary of State on September 13, 1938, showing Charles J. Gratiot, Sr., at a certain address, to be the designated agent in California for service of process on plaintiff corporation. Affidavit of Walter C. Stutler, Assistant Secretary of State, alleges that according to the records on file the designated duly authorized agent in California for service of process for plaintiff corporation on October 27, 1962, was Charles J. Gratiot, Sr.; and that at no time during the year 1962 was J. Barrett Cohen the duly designated authorized agent in California for service of process for plaintiff corporation. No counteraffidavits were filed.

While it is conceded in plaintiff's moving papers that in the Ventura action the Secretary of State erroneously supplied to Clark the name of Cohen as its designated agent, and that on October 17, 1962, Gratiot was in fact deceased, the misnomer, for which we can only assume neither plaintiff nor defendant Clark was at fault, ¹ is not the issue. The real issue is whether the Ventura judgment is void on the face of the judgment roll, not because Cohen (named in Clark's declaration) was not in fact the designated agent for service of process on plaintiff, but because of the failure of Clark's declaration, upon which order substituting service was based, to set out evidentiary facts sufficient to support the allegation of 'due diligence' in its statement that Cohen could not be found at the mentioned address. However, appellants argue in both briefs that this is a new issue 'raised for the first time on appeal. Plaintiff's moving papers in the trial court are wholly devoid of any such contention.' (App. Reply Br., p. 3); and that plaintiff's sole claim in the lower court on the motion was that the judgment was void because the person named as the designated agent in Clark's declaration was not in fact such designated agent, and summary judgment was entered thereon which was error because the misnomer could only have been disclosed by reference to matters outside of the record, thus the Ventura judgment could not be void on its face.

Appellants' claim that the issue was not raised in the court below is incorrect. That the Ventura court lacked jurisdiction because Clark's declaration was defective on its face was argued at length by both parties on the motion in the lower court. In its memorandum in support of the motion, plaintiff specifically directed the court's attention to the 'patently defective affidavit filed by defendant in the 'Ventura action' which deprived that court of jurisdiction to proceed to order this plaintiff in default' (p. 10), thereafter arguing that the declaration was fatally deficient under Batte v. Bandy, 165 Cal.App.2d 527, 332 P.2d 439, and concluding that it is its 'contention herein that this failure to show due diligence in search of the 'designated agent' is patently defective, and thus, has deprived the Ventura Court of jurisdiction to issue the order for substituted service.' (P. 13.) While defendants may have thought the issue to be without merit, they nevertheless attempted to answer it in their memorandum in opposition by urging the inapplicability of Batte v. Bandy. Thereafter, plaintiff argued the matter again in its reply memorandum. In its judgment the court simply declared that 'plaintiff was not served as a party defendant * * * in the Superior Court * * * for the County of Ventura * * * and that said Court had no jurisdiction over the person of the plaintiff.' This is entirely compatible with the theory advanced to the lower court by plaintiff that the Ventura court had no jurisdiction because the declaration of Clark on its face was fatally defective, thus the court lacked jurisdiction to order substituted service based thereon, the order was void and the default and default judgment entered and rendered on substituted service made pursuant thereto were void. In any event, when a judgment on the face of the judgment roll is void, attack can be made upon it at any time; the court has the right and power any time to vacate a void entry of default and a void default judgment. (Batte v. Bandy, 165 Cal.App.2d 527, 537--538, 332 P.2d 439.)

When jurisdiction is obtained by a prescribed form of constructive notice, the statutory conditions upon which service depends must be strictly construed; there must be strict compliance with the mode prescribed in the statute. Conformance with the statute is deemed jurisdictional and absence thereof deprives the court in the particular action of power to render a judgment. (Sternbeck v. Buck, 148 Cal.App.2d 829, 832, 307 P.2d 970; Pinon v. Pollard, 69 Cal.App.2d 129, 133, 158 P.2d 254.) Further, 'It is elementary that substituted service upon a foreign corporation may be made only in the manner and form authorized by statute.' (Tri-State Mfg. Co. v. Superior Court, 224 Cal.App.2d 442, 444, 36 Cal.Rptr. 750, 751.)

The California Legislature has prescribed the manner in which service shall be made on a foreign corporation doing business in this state; summons must be served in the manner set out in sections 6500 through 6504, Corporations Code (§ 411, Code Civ.Proc.). Section 6500 provides for service of a copy of process against a foreign corporation on its officers or any person designated by it as agent for the service of process. According to section 6501, 'If the agent designated for the service of process be a natural person and cannot be found with due diligence at the address stated in the designation * * * and it is so shown by affidavit to the satisfaction of the court or judge, then the court or judge may make an order that service be made by personal delivery to the Secretary of State * * *.' Thus, before an order directing substituted service may be made, the affidavit in support thereof must show to the satisfaction of the court due diligence on the part of the affiant to find the designated agent. However, here the issue is more fundamental--is the affidavit sufficient to confer upon the court the jurisdiction necessary to permit it to determine whether 'due diligence' was satisfactorily shown.

Attached to plaintiff's motion for summary judgment (Exh. 1) is Clark's declaration upon which the Ventura court's order for substituted service under section 6501 was based. Therein Clark made the bare allegation, without stating any evidentiary facts in support thereof, that 'said agent cannot be found with due diligence at the address stated in the designation.' If this declaration on its face was insufficient to confer jurisdiction on the Ventura court to order substituted service on the Secretary of State then the order is void, as is the default and default judgment entered and rendered on the substituted service made pursuant thereto, and the lower court was warranted in entering summary judgment vacating the default and default judgment in the Ventura action.

The rule of strict compliance with the statutory mode for substituted service and Batte v. Bandy, 165 Cal.App.2d 527, ...