Opinion
S.F. No. 1991.
November 28, 1899.
APPLICATION for a writ of mandate.
The facts are stated in the opinion of the court.
J.B. Webster, and D.E. Alexander, for Petitioner.
Dudley Buck, and George F. Buck, for Respondent.
Application for writ of mandate. The petitioner commenced an action in the superior court for the county of San Joaquin May 27, 1899, against the Southern Pacific Company, alleging in his complaint that the defendant was at the date of the complaint, and at all the times therein mentioned, "a corporation incorporated, organized, and doing business in this state." A summons was issued upon the complaint on the same day, and on the 9th of June was returned to the clerk's office with an affidavit of M. Haynes indorsed thereon that he "personally served the within summons on the twenty-ninth day of May, A.D. 1899, on C.J. Jones, the managing and business agent at Stockton, California, of the defendant therein named, by personally delivering to said C.J. Jones personally in said county of San Joaquin a copy of said summons attached to a copy of the complaint in the action therein mentioned; that said defendant is a foreign corporation doing business in the state of California." The respondent herein is the county clerk of San Joaquin county, and the clerk of said superior court, and on June 9th, after the return of the summons, the plaintiff demanded of him that he enter the default of the defendant in said action, which demand was refused. On the 6th of June the defendant in the action had given notice to the plaintiff therein — petitioner herein — of a motion to set aside the service of said summons, and the court had made an order fixing June 8th as the time for hearing this motion, and on that day this notice, with the admission by the plaintiff of its service, together with certain affidavits offered on behalf of the plaintiff in answer to the motion, were filed with the clerk, and the hearing of the motion was continued until June 12th. On this last day, the court made an order granting the defendant's motion to set aside and vacate the service of the summons. Thereafter the plaintiff made the present application to this court for a writ of mandate directing the respondent to enter the default of the defendant in said action.
A writ of mandate to an officer will issue to compel the performance of an act which the law specially enjoins as a duty resulting from his office, trust, or station. The county clerk is not authorized to enter the default of a defendant unless proof has been made and filed that such defendant has been served with the summons, together with a copy of the complaint in the manner provided by the code. Section 411 of the Code of Civil Procedure prescribes different modes of service according to the character of the defendant to be served; and a service that would be good upon a defendant belonging to one of the classes designated in that section would not be good as to a defendant belonging to another of those classes, or authorize the entry of a default as to such defendant. In the present case, the clerk was called upon to determine whether the defendant was a domestic or a foreign corporation, and he may well have hesitated to enter the default of the defendant upon the proof of service presented to him. The plaintiff had alleged in his complaint that the defendant was incorporated under the laws of this state, and the clerk was not authorized to disregard this allegation by reason merely of the affidavit of the process server that the defendant was a foreign corporation. If the defendant was, as alleged in the complaint, a domestic corporation, the proof of service was insufficient to authorize its default to be entered. But, irrespective of this, at the time the present application was made for the writ of mandate, there was no obligation upon the clerk to enter such default. The superior court had by its order set aside and vacated the service of the summons, and so long as that order remained in force the clerk had no authority to enter a default against the defendant. The court had by its order declared that the very evidence of service upon which the plaintiff claimed the right to a default was insufficient to establish such service, and the clerk was required to observe and obey this order, as it was a part of the court's proceedings in the action. It was within the jurisdiction of the court to make the order, and when made, whether erroneous or not, so long as it was in force, it was binding upon the clerk as well as upon the parties to the action. Neither can the action of the court in setting aside the service be reviewed in this proceeding.
The application for the writ is denied.
Henshaw, J., Van Dyke, J., Garoutte, J., and McFarland, J., concurred.