Wyoming Pac. Oil Co. v. Preston

• Decision Date: 12 September 1958
• Citation: 50 Cal.2d 736,329 P.2d 489
• Court: California Supreme Court
• Parties: WYOMING PACIFIC OIL COMPANY, a corporation, Plaintiff and Appellant, v. Edward J. PRESTON, also known as E. J. Preston; Ralph Arnold; George B. Bush; Fred Thompson; Intermountain Production Company, a corporation; et al., Defendants. George B. Bush, Respondent. L. A. 24332.

Page 489

329 P.2d 489

50 Cal.2d 736

WYOMING PACIFIC OIL COMPANY, a corporation, Plaintiff and Appellant, v. Edward J. PRESTON, also known as E. J. Preston; Ralph Arnold; George B. Bush; Fred Thompson; Intermountain Production Company, a corporation; et al., Defendants.

George B. Bush, Respondent.

L. A. 24332.

Supreme Court of California, In Bank.

Sept. 12, 1958.

Henry C. Clausen and Richard G. Burns, San Francisco, for appellant.

No appearance for respondent.

SPENCE, Justice.

Plaintiff appeals from two orders: (1) the order dismissing its action as to defendant Bush; and (2) the subsequent order denying its motion to vacate the dismissal. It contends that the dismissal was improper because of a prior binding adjudication that defendant Bush was concealing himself to avoid service of summons during the final days of the three-year period provided for such service (Code Civ.Proc. § 581a) and because thereafter Bush was served within a reasonable time, that is one week, following the expiration of said three-year period. We have concluded that plaintiff's contention must be sustained.

Plaintiff filed its action against several defendants on December 15, 1952, and summons was issued on that date. The first defendant was served in February, 1955. During the next several months plaintiff was engaged in making a change of counsel, and nothing further was done in completing the service of process. On December 1, 1955, new counsel advised plaintiff that the three-year period for service and return of the summons would soon expire, and thereafter feverish attempts were made to serve defendant Bush. According to the affidavits of several process servers, many visits were made to Bush's home and office between December 12 and December 15, but he could not be located. Upon the basis of these affidavits, plaintiff obtained on December 15, 1955, an order authorizing service by publication, premised on the finding that defendant Bush was concealing himself to avoid service. Continued efforts were made, however, to effect personal service on Bush through repeated visits to his home and office, and finally on December 22, 1955, he was personally served.

On December 28, Bush filed a notice of motion to quash service. The hearing was set for January 3, 1956, but plaintiff's counsel obtained a continuance to January 12 because of the holidays. The day before the hearing on his motion, Bush filed an 'amended and supplemental notice of special appearance and motion to quash summons and service thereof together with motion to dismiss action' as to him for failure to serve and return the summons within the three-year limit provided in section 581a of the Code of Civil Procedure. Bush also filed an affidavit stating that he was readily accessible at his home and office on the days immediately prior to December 15, 1955, and was not concealing himself in any way. The court granted his motion to dismiss and entered an order of dismissal. Thereafter plaintiff made a motion to vacate the dismissal, but its motion was denied.

Initially, we must consider the effect, in the proceedings to dismiss the action, of the prior order authorizing service on Bush by publication. Section 412 of the Code of Civil Procedure provides that 'Where the person on whom service is to be made * * * can not, after due diligence, be found within the State; or conceals himself to avoid the service of summons; * * * and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; * * * such court, or judge, may make an order that the service be made by the publication of the summons.' In Rue v. Quinn, 137 Cal. 651, at pages 655-656, 66 P. 216, at page 217, 70 P. 732, it is said: 'In making the order for the service by publication, the judge acts judicially upon the evidence which the Code requires to be presented to him for that purpose, and can act upon no other evidence than such as is prescribed by the Code. * * * (His) decision * * * is to be regarded with the same effect as is his decision upon any other matter of fact submitted to his judicial determination.' (Emphasis added.) Here the order expressly recites that 'upon reading and filing the affidavits (of five named persons) and it satisfactorily appearing therefrom to me that the Defendant George B. Bush * * * conceals himself to avoid service of the Summons * * *.' It thus appears that at the time of making the order for publication, the court was satisfied, and therefore found, that defendant Bush was concealing himself to avoid service.

It is settled law in California that 'a valid order made ex parte may be vacated only after a showing of cause for the making of the latter order, that is, that in the making of the original order there was (1) inadvertence, (2) mistake, or (3) fraud.' Sheldon v. Superior Court, 42 Cal.App.2d 406, 408, 108 P.2d 945, 946. Such order may not be set aside simply because 'the court concludes differently than it has upon its first decision.' Klokke Inv. Co. v. Superior Court, 39 Cal.App. 717, 720, 179 P. 728, 729; see also Wiggin v. Superior Court, 68 Cal. 398, 402, 9 P. 646; Sullivan v. Superior Court, 185 Cal. 133, 139, 195 P. 1061. Here there has been no showing that the judge who made the order for publication of summons against Bush acted inavertently or through mistake, or that he was imposed upon. Bush has never directly challenged the finding of concealment as contained in the order; he has never moved to set the order aside; and the order, being fully supported by the affidavits furnished by plaintiff prior to its making, stands as a binding adjudication. See Matchett v. Ryerson, 156 Cal.App.2d 52, 54-55...