Opinion
6-22-1955
Mary SOLOT and Joseph D. Solot, Plaintiffs and Appellants, v. Michel LINCH, Mrs. Beulah F. Linch, Mr. C. A. Linch, and Does I through V, inclusive, Defendants. C. A. Linch, Respondent. Civ. 20756.
John N. Frolich, William Levin, Los Angeles, for appellants. Spray, Gould & Bowers, Los Angeles, for respondent.
Mary SOLOT and Joseph D. Solot, Plaintiffs and Appellants,
v.
Michel LINCH, Mrs. Beulah F. Linch, Mr. C. A. Linch, and Does I through V, inclusive, Defendants.
C. A. Linch, Respondent.
June 22, 1955.
Rehearing Denied July 21, 1955.
Hearing Granted Aug. 17, 1955.
John N. Frolich, William Levin, Los Angeles, for appellants.
Spray, Gould & Bowers, Los Angeles, for respondent.
ASHBURN, Justice pro tem.
Plaintiffs appeal from an order, made pursuant to section 473a Code of Civil Procedure, vacating default of defendant C. A. Linch and also judgment by default rendered against him. The action is one for recovery of damages for personal injuries received in an automobile accident occurring upon a highway within the State of California. Defendant C. A. Linch was sued as the owner of an automobile which was being driven with his permission at the time of the accident. He was and is a nonresident and was served with summons and complaint pursuant to section 404, Vehicle Code. This occurred in May, 1953, default judgment was entered on April 7, 1954 and said defendant served a motion to vacate on May 17, 1954. This was more than six months after entry of default (which was on November 5, 1953), but well within the year prescribed by section 473a, which period begins to run upon entry of judgment. One of the grounds of the motion was that Linch had not been personally served and hence was entitled to relief under 473a. Plaintiffs opposed upon the ground, among others, that service under section 404, Vehicle Code constitutes personal service and hence 473a is inapplicable.
Said section 404 consists of subsections (a) to (h) inclusive. We quote (a) and (b): '(a) [Service on Director of Motor Vehicles.] The acceptance by a nonresident of the rights and privileges conferred upon him by this code or any use of the highways of this State as evidenced by the operation by himself or agent of a motor vehicle upon the highways of this State or in the event such nonresident is the owner of a motor vehicle then by the operation of such vehicle upon the highways of this State by any person with his express or implied permission, is equivalent to an appointment by such nonresident of the director or his successor in office to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against said nonresident operator or nonresident owner growing out of any accident or collision resulting from the operation of any motor vehicle upon the highways of this State by himself or agent.
'(b) [Same: Force and validity.] The acceptance of such rights and privileges or use of said highways shall be a signification of the agreement of said nonresident that any such process against him which is served in the manner herein provided shall be of the same legal force and validity as if served on said nonresident personally in this State.' Subsection (c) provides for handing a copy of the summons and complaint and a fee of two dollars to the Director of Motor Vehicles or someone in his office and declares that to be sufficient service subject to compliance with subdivision (d); it (d) requires plaintiff or his attorney to send by registered mail a notice of such service and copy of summons and complaint to defendant or to make personal service upon defendant wherever found outside the state, which personal service 'shall be the equivalent of said mailing'; (e) requires proof of mailing to be made by affidavit which must include a return receipt 'bearing the signature of said defendant'; it also prescribes method of proof of personal service if had outside the state; (f) says 'The court * * * may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action'; (g) requires the director to keep a record of all process so served on him; and (h) defines a nonresident as one who is not residing in this state at the time the accident or collision occurs.
Section 473a Code of Civil Procedure is as follows: '[Answer of defendant not served.] When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.'
On this appeal counsel for respondent raise no question of constitutionality of the statute and expressly concede that service was made upon said Linch in the manner required by section 404; that he received the documents in the mail: and that the service was a valid one. Appellants' counsel acquiesces in these statements. And both sides devote themselves primarily to discussion of the question whether this service was or was not personal service within the meaning of section 473a. Appellants rely heavily upon the phrase in 404(b) that such service 'shall be of the same legal force and validity as if served on said nonresident personally in this State', arguing that this classifies the service as personal and hence renders 473a inapplicable. Respondents' counsel stress the phrase of 473a which says 'When from any cause the summons in an action has not been personally served on the defendant * * *.' The question of the effect of these two statutes in relation to each other is a new one in this state. Counsel have not cited, nor have we found, any cases directly in point.
Counsel argue as to whether the service made in this case upon a statutory agent of defendant was in fact personal service. That it was not seems clear. For personal service consists of delivery by hand to defendant, Holiness Church of San Jose v. Metropolitan Church Ass'n, 12 Cal.App. 445, 448, 107 P. 633; Hustock v. Estate Development Corp., 22 Cal.2d 205, 210-211, 138 P.2d 1, 148 A.L.R. 968; 21 Cal.Jur. § 17, p. 492, or its equivalent in case of his refusal to accept the document. Trujillo v. Trujillo, 71 Cal.App.2d 257, 162 P.2d 640; In re Ball, 2 Cal.App.2d 578, 38 P.2d 411; 72 C.J.S., Process, § 34 c, p. 1043. This court in Weisfeld v. Superior Court, 110 Cal.App.2d 148, 151, 242 P.2d 29, 31, said 'Section 404 of the Vehicle Code prescribes a form of constructive service.' Briggs v. Superior Court, 81 Cal.App.2d 240, 246, 183 P.2d 758, speaks of it as 'substituted service.' The Supreme Court, in Allen v. Superior Court, 41 Cal.2d 306, 311, 259 P.2d 905, 908, describes it as 'substituted or constructive service' and like characterization is found in Berger v. Superior Court, 79 Cal.App.2d 425, 428, 179 P.2d 600. This service not being such as is properly classified as personal the next question is whether the legislature intended by the language of section 404 to attach that quality to it for all purposes or indeed for any purpose other than that of fastening upon defendant jurisdiction sufficient to support a personal judgment. As above indicated the absence of precedent requires an independent evaluation of the purpose of the statute.
The evils to be remedied and the objective sought to be obtained are outstanding guideposts to correct statutory interpretation. Buckner v. Vetterick, 124 Cal.App.2d 417, 418, 269 P.2d 67; 23 Cal.Jur. §§ 137-138, pp. 763-65. 'It is fundamental that the objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in its interpretation.' Rock Creek Water Dist. v. County of Calaveras, 29 Cal.2d 7, 9, 172 P.2d 863, 865. This language is quoted in Richfield Oil Corp. v. Crawford, 39 Cal.2d 729, 738, 249 P.2d 600 and Wotton v. Bush, 41 Cal.2d 460, 467, 261 P.2d 256. 'It is also a general rule that a statute should not be extended by construction beyond the purpose intended by the legislature.' 50 Am.Jur. § 303, p. 289.
The background of such legislation, the evil to be corrected, is thus stated by Professor Austin W. Scott in 64 Harvard Law Review, page 98: 'When automobiles began to spread over the United States in the early days of this century, and people from other states came into a state and negligently caused damage to the person or property of its citizens and then left the state, the citizens became annoyed. Of course an action could be brought against the nonresident motorist in his own state, or in another state in which he could be found and served with process, since the action was a transitory action. But this was not very satisfactory.' And the purpose of out own statute is stated in Briggs v. Superior Court, supra, 81 Cal.App.2d 240, 245, 183 P.2d 758, 762, as follows: 'It is to provide a method whereby persons from other states, who while temporarily within the state of California, become involved in litigation as the result of their use of a motor vehicle on the highways of the state, may be sued in this state, and, although they have left the state, may be served with process by substituted service.' McDonald v. Superior Court, 43 Cal.2d 621, 623, 275 P.2d 464, 465, says: 'The obvious purpose of section 404 is to make amenable to suits in the courts of this state those nonresidents who may incur liability in the operation of motor vehicles upon the highways of this state.' Allen v. Superior Court, supra, 41 Cal.2d 306, 259 P.2d 905 deals with the validity of section 417, Code of Civil Procedure, relating to personal judgment against a resident who has left the state and thereafter been served by publication and personal delivery of process where found in another jurisdiction. In sustaining this legislation the court adverted to section 404, Vehicle Code, saying 41 Cal.2d at page 311, 259 P.2d at page 908: 'The increasingly artificial nature of state boundaries, the expanding of metropolitan areas into two or more states, and the multiplying transportation facilities, especially through the widespread use of automobiles and trucks affecting the mobility of population, all bear significantly on the problem of process. The necessities of the situation are recognized in the nonresident motorist statutes, e. g., Vehicle Code, § 404, permitting an injured person to obtain effective redress against transient motorists. Jurisdiction in such cases is predicated upon the theory of consent of the nonresident to substituted or constructive service and the appointment of the secretary of state or like officer as agent for receipt of service of process. [Citing cases.] This consent is largely fictional but it meets the problem of process in regard to highway automobile accidents involving nonresident motorists, see Annotations, 35 A.L.R. 951; 57 A.L.R. 1239; 99 A.L.R. 130; also 23 Ill.L.Rev. 427, 436. However, these statutes, in order to be valid, must provide some method of service reasonably designed to give notice of the action to the defendant. [Citing cases.]' And the Supreme Court of the United States, in upholding validity of a Massachusetts statute which is substantially the same as our section 404, said in Hess v. Pawloski, 274 U.S. 352, 356, 47 S.Ct. 632, 633, 71 L.Ed. 1091, 1094: 'The measure in question operates to require a nonresident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights. * * * It makes no hostile discrimination against nonresidents, but tends to put them on the same footing as residents.'
All these explanations of the purpose of the statute speak in terms of jurisdiction,--jurisdiction over the person sufficient to sustain a personal judgment. And that appears to be the sole objective of section 404. It does not concern itself with procedure at all except such as is calculated to fasten effective jurisdiction upon the defendant. It does not even prescribe time to answer as does a somewhat similar statute, section 1018, Code of Civil Procedure. The objective of section 404 has been accomplished when defendant has been brought into court; all subsequent procedural matters are left to other statutes, primarily the Code of Civil Procedure, operating alike upon residents and nonresidents who have been brought into court. 61 C.J.S., Motor Vehicles, § 502, p. 153: 'Such statutes primarily relate to jurisdiction, and have the effect of placing a nonresident motorist summoned thereunder on a parity with one actually summoned within the state.'
Section 404(a) constitutes the Director defendant's 'true and lawful attorney upon whom may be served all lawful processes in any action or proceeding' growing out of an automobile accident, and for no other purpose. When subdivision (b) says that the nonresident motorist agrees that any process served in the required manner 'shall be of the same legal force and validity as if served on said nonresident personally in this State' (emphasis supplied) it merely lifts substituted service to the dignity of personal service for jurisdictional purposes, and it has no other purpose. This same thought is carried into subdivision (d) which requires service by registered mail and adds: 'Personal service of such notice and a copy of the summons and complaint upon said defendant wherever found outside this State shall be the equivalent of said mailing.' (Emphasis added.) It is thereby shown to be a matter of indifference to the statutory purpose whether the process be received by mail or by personal delivery in another state. Either procedure fastens personal jurisdiction upon the defendant--no more and no less--predicated upon the 'largely fictional' consent of the nonresident defendant that the Director shall be his agent for such purpose.
In Holiness Church of San Jose v. Metropolitan Church Ass'n, supra, 12 Cal.App. 445, 448, 107 P. 633, 634, the court held that delivery of process to the Secretary of State was not personal service upon a foreign corporation under section 405 of the Civil Code as it then stood; that section said that 'the service is a valid service on such corporation.' Stats.1907, p. 558. The court added this: 'If the Legislature had intended that the delivery of process to the Secretary of State should be regarded as tantamount to personal service upon the corporation as distinguished from constructive service, doubtless it would have expressly so declared, as is done, we believe, in some states, and as is the case in this state in reference to foreign fire insurance companies doing business here. Section 616, Pol.Code.' This the legislature did in section 3302, Corporations Code, which relates to domestic corporations and provides for service of process, under court order, upon the Secretary of State when no agent has been designated for service of process, or, if designated, cannot be found. That section concludes with this sentence: 'Service in this manner constitutes personal service upon the corporation.'
Section 473a, Code of Civil Procedure, extends to all persons who have not been personally served within the State of California; personal service in another state does not preclude its operation. Tucker v. Tucker, 59 Cal.App.2d 557, 559, 139 P.2d 348. And the statute, by its own terms, becomes applicable whenever 'from any cause the summons in an action has not been personally served on the defendant.'
The case of Scorza v. Deatherage, 8 Cir., 208 F.2d 660, cited and quoted by appellant's counsel, contains some language which supports his position, but it involves the statute of limitation and not one resembling our section 473a. It was an action for wrongful death arising under the laws of Missouri. Service was made upon a nonresident defendant under a statute like our Vehicle Code, section 404, providing, as does ours, that process so served 'shall be of the same legal force and validity as if personally served on him in this state.' V.A.M.S. § 506.210. The applicable statute of limitation, V.A.M.S. § 537.100, was one year subject to a proviso that in case of absence of defendant from the state at or after the time of death, 'so that personal service cannot be had upon such defendant in the state' the period of such absence should not be counted in computing the statutory period. It was argued that, though the statute authorized personal judgment, the service was not personal service within the meaning of the death statute. The court rejected this contention, saying at page 662 that the State Supreme Court had held that service on an agent authorized to accept service constitutes personal service upon the principal. And at page 663: 'We conclude that plaintiffs could at all times subsequent to the accrual of their cause of action have secured personal service of process on the defendants by serving such process upon the Secretary of State of Missouri, and hence, the statute of limitations embodied in the death statute was not tolled.' The same holding as to the relation between the nonresident motorist statute and the statute of limitation was made in Busby v. Shafer, S.D., 66 N.W.2d 910, 911. Within their own limited sphere there may be no good reason to differ with these ultimate holdings. But they do not apply here, for our question is entirely different. No process of rationalization can obscure the fact that respondent at bar was not personally served in California or elsewhere; where; he received the summons by mail.
Midvale Paper Board Co. v. Cup Craft Paper Corporation, 173 Misc. 786, 19 N.Y.S.2d 135, 137, does say that 'Service upon the Secretary of State is not an alternative method of substituted service. It is a method of personal service upon an agent of the corporation appointed by law.' But this language referred to a statute which is on a parity with out Corporations Code, section 3302, quoted supra. This appears from the following passage in 19 N.Y.S.2d at page 136. 'Section 228 of the Civil Practice Act, providing for 'personal service of the sommons upon a domestic corporation' * * *, in subdivision 4 * * * authorizes such service by delivery of the summons 'to the secretary of state when he shall have become the agent of the corporation for the service of process as provided in the stock corporation law.'' This case throws no light upon our immediate problem.
Roper v. Brooks, 201 La. 135, 9 So.2d 485, holds that the appointment of the Secretary of State as agent for service of process under the terms of a statute like our section 404 is not the equivalent of a voluntary appointment within the meaning of a statute denying the right of attachment against a nonresident who has an agent within the state authorized to accept service of process.
In any other type of action a defendant who has been served personally outside the state, or by publication, has a year within which to appear. Tucker v. Tucker, supra, 59 Cal.App.2d 557, 139 P.2d 348. To hold that defendant at bar had only the period prescribed for personal service (30 days at most) and that he must seek relief from default within 6 months and upon different grounds from those applicable to other actions would constitute a discrimination against the nonresident motorist. That would be contrary to the spirit of section 404 and no ground is apparent for imputing such an intention to the legislature.
We hold that service of process pursuant to section 404, Vehicle Code, is not personal service within the purview of section 473a, Code of Civil Procedure.
Defendant-respondent moved for relief from his default within the time prescribed by 473a, tendered an answer to the complaint, and claims to have been entitled as matter of right to relief from the default. Unlike section 473 no showing of mistake, inadvertence, surprise or excusable neglect is necessary to a motion under 473a. Gray v. Lawlor, 151 Cal. 352, 354, 90 P. 691. And proof that there was no personal service, coupled with a showing of merits, makes a prima facie case for relief. Boland v. All Persons, etc., 160 Cal. 486, 490, 117 P. 547; Palmer v. Lantz, 215 Cal. 320, 324, 9 P.2d 821; Hiltbrand v. Hiltbrand, 218 Cal. 321, 323, 23 P.2d 277; Thompson v. Sutton, 50 Cal.App.2d 272, 276, 122 P.2d 975. 'But his opponent may show, in opposition to the application, that the applicant had actual notice of the action in time to have entered an appearance and present the defense, and that the failure to do so was owing to his neglect or to his consent to the judgment. In that event a case arises for the exercise of the discretion of the court, and it must determine whether or not the laches is of a character that should preclude the relief.' Hiltbrand v. Hiltbrand, supra, 218 Cal. 321, 323, 23 P.2d 277, 278. Appellants assumed this burden but the court ruled against them and the question of whether there was an abuse of discretion must now be examined.
The pertinent facts viewed most favorably to respondent are these. Summons and complaint were served on the Director of Motor Vehicles on May 7, 1953. On May 25, 1953 summons and complaint and a notice prescribed by section 404 were sent by plaintiffs' attorney via registered mail to defendant; same were received by defendant in Nebraska on May 28, 1953; he signed the return receipt for same; and forwarded the summons and complaint to State Farm Insurance Company, his insurer, in Los Angeles; it in turn transmitted the papers to its attorneys, the firm representing respondents on this appeal. Mr. Robert Bernard, adjuster for the insurance company, had previously conducted some limited negotiations for settlement with plaintiffs' attorneys; Mrs. Solot had submitted to a physical examination by a physician designated by the insurance company, also an electroencephalogram. About May 25, 1953, the same day as the mailing to defendant, plaintiffs' attorney furnished Mr. Bernard with a copy of summons and complaint and he forwarded same promptly to the company's attorneys. The copies arrived not later than June 3, 1953, on which date the calendar clerk had an understanding with plaintiffs' attorney that defendant should have until June 22 to plead. This case was assigned to Mr. Philip L. Bradish of the law firm, Spray, Gould & Bowers. He received the papers not later than June 8. On that day he telephoned Mr. Frolich, plaintiffs' attorney, and inquired as to manner of service upon Mr. Linch. In the face of a conflict in the affidavits the trial judge is presumed to have found that Mr. Frolich said that '* * * the Secretary of State of the State of California had been served with a copy of the Summons and Complaint in compliance with Section 404 of the California Vehicle Code' and notice and copies mailed to Linch. The affidavit of Mr. Bradish says that 'he relied upon the information furnished to him in his telephone conversation with attorney John N. Frolich on the 8th day of June, 1953. * * *' But this statement must be recognized as a mere conclusion, for Mr. Bradish on that same day telegraphed the Secretary of State inquiring whether service had been made on him; on the 9th he received an answer in the negative; then he requested and received from the Secretary an affidavit to that effect. On the 11th of June, 1953 (3 days after the telephone conversation) Mr. Bradish wrote Mr. Frolich, referring to the fact that no service had been made upon the Secretary of State as previously stated by Frolich, and then proceeding as follows: 'By reason of the fact that valid service under Section 404 of the California Vehicle Code has not been effected upon defendant C. A. Linch or Beulah F. Linch in this matter, we are refusing at this time to file any Answer on behalf of either of these defendants or to pur in any appearance whatsoever on their behalf. If in the future you are able to effect valid service on any of these defendants we shall be very happy to discuss the matter with you and file an Answer on behalf of those who have been validly served.' The reference to section 404 should be noted. It does not authorize service on the Secretary of State and the writer had it in mind; he either knew its requirement or could have ascertained same by opening the code before asserting 'that valid service under Section 404 of the California Vehicle Code has not been effected upon defendant.' When he said 'we are refusing at this time to * * * put in any appearance whatsoever on their behalf' he threw down the gage of a jurisdictional battle and released Mr. Frolich from any moral, ethical or courtesy obligation to advise him of any steps he might take looking to a default. There is no suggestion in the affidavits that defendants' attorney ever inquired of Mr. Frolich or otherwise attempted to ascertain whether service upon the Director of Motor Vehicles had been made or attempted. After June 11, 1953 there were never any further communications between the two attorneys until service of the motion to vacate on May 17, 1954. Meantime plaintiffs' attorney had requested entry of default on September 4, 1953, and an order entering default was made on November 5, 1953. Five months later proof was made and a judgment of default rendered in favor of Mary Solot for $7,500 and for Joseph Solot in the sum of $2,807.06. On May 5, 1954, Mr. Frolich sent to Mr. Linch by air mail a notice of entry of said judgment and on the next day Mr. Bradish caused a search of the court records to be made and found the said default judgment. On May 17, 1954, notice of motion to vacate default and judgment was given. An amended and supplemental notice was served on May 25, invoking relief under section 473a as well as 473a, Code of Civil Procedure. Same was granted on June 4, 1954, upon condition that defendant pay plaintiff $100 to cover cost of expert testimony at the default hearing and to Mr. Frolich an attorney fee of $150. These sums were tendered and refused. Then came the appeal.
If the order had to rest upon section 473, the motion probably would have been denied as one based upon an inexcusable ignorance of the law, see Security Truck Line v. City of Monterey, 117 Cal.App.2d 441, 445-446, 256 P.2d 366, 257 P.2d 755; Witkin California Procedure, § 50, p. 2102 or a deliberate gamble upon the sufficiency of the service of process. But the question now presented is different from one arising under 473. And '* * * in the case of one served by publication the defendant has an advantage in his attempt to vacate a judgment by default, whereas under section 473 the burden is strictly upon the defendant to show that he has suffered mistake, surprise, inadvertence or excusable neglect.' Gardner v. Gardner, 72 Cal.App.2d 270, 272, 164 P.2d 500, 501. The moving party makes a prima facie showing of a right to relief by establishing the fact of no personal service and tendering an answer raising issues upon the merits. The rule is stated as one of inflexibility in Holiness Church of San Jose v. Metropolitan Church Ass'n, supra, 12 Cal.App. 445, 447, 107 P. 633, 644: 'The motion here was made immediately after the entry of judgment, and if the service of the summons in the case may be regarded as constructive and not personal, then the appellant, without any showing of mistake, surprise, inadvertence, or excusable neglect, was entitled as a matter of absolute right to have the judgment vacated and set aside, and the court was without any discretion in the premises.' Daniels v. Colkins, 201 Cal. 10, 11, 255 P. 182, states the rule in substantially the same way. Likewise Hoffman v. Superior Court, 151 Cal. 386, 393, 90 P. 939. But it is not so rigid. Boland v. All Persons, etc., supra, 160 Cal. 486, 490, 117 P. 547, 548, uses this language: 'In applications for relief under this clause of the section there is no presumption of neglect, as in cases where there has been personal service. The party is not required, in the first instance, to do more than show that he has not been personally served and that he has a good defense to the action on the merits which he could have presented had he been informed of its pendency. Gray v. Lawlor, 151 Cal. 354, 90 P. 691. But his opponent may show in opposition to the application that the applicant had actual notice of the action in time to have entered an appearance and present the defense, and that the failure to do so was owing to his neglect or to his consent to the judgment. In that event a case arises for the exercise of the discretion of the court, and it must determine whether or not the laches is of a character that should preclude the relief.' The words neglect and laches are here used as equivalents. In other cases the word estoppel is employed. E. g. Gardner v. Gardner, supra, 72 Cal.App.2d 270, 274, 164 P.2d 500; Gray v. Lawlor, supra, 151 Cal. at page 357, 90 P. 691. In re Mercereau, 126 Cal.App. 590, at page 601, 14 P.2d 1019, at page 1024, says: 'The exercise by the court of its discretion involves a determination of whether the defendant's neglect makes it inequitable to grant the relief.' Clearly knowledge of suit and neglect to act are not enough to defeat the application for relief. There must be the further element of laches or estoppel. And the exact meaning of those words as used in this connection appears from this quotation: 'If there was any neglect on his part to the injury of the opposite party, which would make it inequitable to grant him the relief, proof of such neglect and of the circumstances causing injury must come from the plaintiff.' Gray v. Lawlor, supra, 151 Cal. 352, at page 355, 90 P. 691. (Emphasis added.) The record does not disclose any injury to plaintiffs flowing from defendants' inaction in the instant case and hence affords no basis for an estoppel.
Defendant made a showing which called upon the trial judge to exercise discretion. True it had to be 'a legal discretion, not an arbitrary one'. Riskin v. Towers, 24 Cal.2d 274, 279, 148 P.2d 611, 614, 153 A.L.R. 442. But it is proper in acting upon a motion under 473a, as well as one under 473, to exercise that discretion in favor of a trial upon the merits. Thompson v. Sutton, 50 Cal.App.2d 272, 276, 122 P.2d 975. We hold that there was no abuse of discretion in this case.
Order affirmed.
SHINN, P. J., and VALLEE, J., concur. --------------- * Opinion vacated 292 P.2d 887. 1 There are other defendants but the appeal concerns only the defendant C. A. Linch. 2 There is a dispute in the affidavits about this matter of notice but respondents brief concedes the point. 3 The court apparently considered the service to be constructive, not personal, and the equivalent of service by publication, to which subdivision 3 of section 585, Code of Civil Procedure applies. See also section 187, Code of Civil Procedure, and Winston v. Idaho Hardwood Co., 23 Cal.App. 211, 214, 137 P. 601. We do not consider appellants' argument based on section 585, subdivision 2, Code of Civil Procedure, to be sound.