Hunstock

A decree of foreclosure which orders the sale of real property to satisfy a note secured by a mortgage, and also gives the mortgagee a judgment for any deficiency, is challenged solely upon jurisdictional grounds. The determinative question for decision is whether service of process may be made upon a domestic corporation, within the authorization of section 373 of the Civil Code, by mailing a copy of the summons and complaint to the Secretary of State.

The appellant, Estate Development Corporation, a domestic corporation, is the maker of the note and mortgage sued upon. The instruments were executed on behalf of the corporation by H. Ellis Martin, president, and L. J. Martin, secretary. Harry E. Martin, as an individual, also signed them.

Nine months after the complaint for foreclosure was filed and the summons issued thereon, John H. Nutt, one of the attorneys for the respondent mortgagee, made an ex parte application for an order directing that service in the action be made upon the mortgagor by delivering to the Secretary of State, or to any person employed in his office in the capacity of assistant or deputy, a copy of the summons and complaint in the action.…

I dissent.

The question presented by this appeal is whether the delivery of a summons by mail to and receipt of it by the Secretary of State followed by the mailing of it by the latter to the defendant corporation, in an action against the corporation, is sufficient compliance with the law on the subject. The case presented is properly one for substituted service and comes within the terms of section 373 of the Civil Code, as it read prior to 1941, as follows:

The majority opinion holds that the delivery of the summons to the Secretary of State must be a personal one and not by mail. Indulgence in such technicality should not be permitted to thwart the ends of substantial justice. It must be remembered that the service involved is substituted service and not personal service. It is made effective as a means of acquiring jurisdiction in personam by statutory declaration. Such service does not necessarily give the defendant personal notification of the action. It need merely be designed to be likely to have that effect. Jurisdiction is acquired if compliance is had with the statutory requirements, even though the defendant never in fact receives a copy of the summons. Requiring…

A decree of foreclosure which orders the sale of real property to satisfy a note secured by a mortgage, and also gives the mortgagee a judgment for any deficiency, is challenged solely upon jurisdictional grounds. The determinative question for decision is whether service of process may be made upon a domestic corporation, within the authorization of section 373 of the Civil Code, by mailing a copy of the summons and complaint to the Secretary of State.

The appellant, Estate Development Corporation, a domestic corporation, is the maker of the note and mortgage sued upon. The instruments were executed on behalf of the corporation by H. Ellis Martin, president, and L. J. Martin, secretary. Harry E. Martin, as an individual, also signed them.

Nine months after the complaint for foreclosure was filed and the summons issued thereon, John H. Nutt, one of the attorneys for the respondent mortgagee, made an ex parte application for an order directing that service in the action be made upon the mortgagor by delivering to the Secretary of State, or to any person employed in his office in the capacity of assistant or deputy, a copy of the summons and complaint in the action. As the basis…