Opinion
Civ. No. 918.
February 18, 1911.
APPEAL from orders of the Superior Court of Los Angeles County denying motions to vacate a judgment and to dissolve an attachment. W. R. Hervey, Judge.
The facts are stated in the opinion of the court.
Walter J. Horgan, for Appellant.
D. Joseph Coyne, for Respondent.
Defendant Buisseret appeals from orders of the superior court denying motions made by him to vacate a default judgment, and to dissolve an attachment. The action was brought to recover the sum of $5,241.04 from defendants for goods, wares and merchandise sold to them. By the bill of exceptions it appears that both of the motions mentioned were presented at the same time. Among the grounds upon which the motions were made it was specified that the court had obtained no jurisdiction over the defendant entitling it to render judgment against him, and that the affidavit upon which the writ of attachment was issued was insufficient to authorize the issuance of such writ. It was specified as a further objection to the validity of the judgment that the service of summons was made by publication thereof, and that the facts stated in the affidavit upon which the order for publication was based did not make out a sufficient case authorizing the summons to be so served. The files and records of the case were used on the hearing of the motions, including the affidavit on attachment, and the writ.
The affidavits upon which the order for publication of summons was based showed that search had been made for defendant Buisseret in the city of Los Angeles and at and about his last place of residence, that members of defendant's family had informed persons who were attempting to secure service of the summons that Buisseret was not at home, that he was not in the state, and that the informants refused to tell where the said defendant was. As a part of the showing, affidavits of four deputy constables who had attempted to make personal service of summons upon defendant were submitted. The facts shown in the affidavits for publication of summons were sufficient to justify the court in finding, as it did, that defendant could not after due diligence be found within the state, and to support the order that the service of summons be made upon him by publication. ( Rue v. Quinn, 137 Cal. 652, [ 66 P. 216, 70 P. 732]; People v. Wrin, 143 Cal. 11, [73 P. 646].)
The judgment entered against defendant was in form a personal one for the recovery of the amount of money sued for. Assuming that service by publication of summons against a defendant who is a resident of this state may authorize the entry of a personal judgment against him, the affidavits for publication of summons used by plaintiff here, and the order of court based thereon, made it appear that the defendant was not within the state of California at the time the order for publication was made, and that he was a nonresident of the state. ( De La Montanya v. De La Montanya, 112 Cal. 101, [53 Am. St. Rep. 165, 44 P. 345, 32 L. R. A. 82]; Boring v. Penniman, 134 Cal. 514, [ 66 P. 739].) There was no jurisdiction under the showing made to authorize the entry of a purely personal judgment against Buisseret. Such a judgment could have no vitality or effect at all, except where it appeared that the plaintiff held property under a valid attachment at the time of its rendition. If it was made so to appear, the judgment would be considered as one in rem in so far as it might be satisfied out of the property so held under attachment. There is clearly no authority for the entry of a money judgment against a nonresident upon service of summons by publication, where there is not shown to be property of such nonresident within this state, which the court has jurisdiction to cause its judgment and decrees to operate upon. ( Anderson v. Goff, 72 Cal. 72, [1 Am. St. Rep. 34, 13 P. 73]; Blanc v. Paymaster Min. Co., 95 Cal. 530, [29 Am. St. Rep. 149, 30 P. 765]; Brown v. Campbell, 100 Cal. 641, [38 Am. St. Rep. 314, 35 P. 433]; De La Montanya v. De La Montanya, supra; Boring v. Penniman, supra.)
Defendant was also entitled to have his motion to vacate the judgment granted if it appeared that no valid attachment had been issued, and property levied upon thereunder, at the time the judgment was entered. The affidavit on attachment furnished by the plaintiff failed to state, as required by the statute, that the "attachment" was not sought to "hinder, delay, or defraud any creditor or creditors of defendant." (Code Civ. Proc., sec. 538.) The affidavit did recite that the "judgment was not sought . . . to hinder, delay, or defraud any creditor or creditors of said defendant." The affidavit was, therefore, fatally defective, and was wholly insufficient to authorize the issuance of the writ of attachment. "The right to an attachment, and the mode of procedure for obtaining it, are the creatures of statute, depending for their existence and regularity upon the terms of the code." ( Kohler v. Agassiz, 99 Cal. 12, [33 P. 741].) While it is true that the clerk performs but a ministerial duty in issuing the writ of attachment, he has no authority to issue such writ where there is no statement in the affidavit of the facts plainly required by the statute to be set forth therein. ( McCusker v. Walker, 77 Cal. 212, [19 P. 382].)
As no valid attachment had been levied against property of defendant at the time the judgment was entered, and this fact was made to appear by the records and files of the court, defendant Buisseret was entitled to have his motion to set aside the judgment granted as well as his motion to vacate and dissolve the attachment.
The orders are reversed.
Allen, P. J., and Shaw, J., concurred.