Diamond National Corp. v. Golden Empire Builders, Inc.

This is an appeal by plaintiff from an order granting a motion by defendants to set aside a clerk’s default and default judgment against all defendants. The grounds of the motion were (1) the defective service of summons and (2) that no judgment in this action could be made without exercise of judicial discretion, and that, consequently, the clerk’s judgment was void.

The complaint in its caption named a corporate defendant and four persons, purporting to sue them “individually, and doing business as Cal-Ore Construction Company.” In this caption the nature of the entity known as Cal-Ore Construction Company is not stated. There is no mention in the body of the complaint, either of this firm or that defendants are being sued as members of it.

The complaint is in two counts: Count I alleging an indebtedness by defendants (without naming them or specifying in what capacity they were being sued) to plaintiff on an open book account for goods sold at the agreed price of $25,-877.77 and Count II alleging indebtedness for said amount as “the reasonable value” of said goods.

A summons was issued bearing the same caption as the caption of the complaint. It is addressed: “To the above…