R. H. Herron Co. v. Westside Electric Co.

This is an appeal taken by defendant Kern River Mining and Power Company from a judgment entered against it by default. Plaintiff instituted the action to recover against the Westside Electric Company various sums of money for merchandise sold by it and several other vendors whose claims were assigned to plaintiff prior to the commencement of the action. Judgment was sought against appellant upon its statutory liability as a holder of shares of stock of the Westside Electric Company. In the complaint it was alleged that appellant was a corporation organized and existing under the laws of the territory of Arizona and authorized by its articles of incorporation to subscribe for, own and hold stock in other corporations. It was not' alleged that appellant was doing business in the state of California at the time of the service of summons, or at all, or that it had a managing agent, cashier, or secretary within this state. The affidavit purporting to show service of summons recited that the person making the service had “on the twenty-ninth day of August, '1910, personally served summons in said action upon defendant Kern River Mining and Power Company, in said county of Los Angeles,…

The argument made by respondent in its petition for rehearing would be pertinent had the default judgment appealed from been one which was entered by the court. In that case it would be presumed that all of the necessary facts as to the service of summons had been made to appear. The judgment-roll here exhibited shows that the clerk entered judgment upon an insufficient affidavit of service of summons, and we cannot assume that there was any other proof made of such service. The clerk’s duty of entering a default judgment is a ministerial one and not judicial in its nature. The supplemental affidavit filed long after the per *781 fecting of this appeal can constitute no proper part of the record to which we are entitled to look in determining the question presented.

Rehearing is denied.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 28, 1912.

This is an appeal taken by defendant Kern River Mining and Power Company from a judgment entered against it by default. Plaintiff instituted the action to recover against the Westside Electric Company various sums of money for merchandise sold by it and several other vendors whose claims were assigned to plaintiff prior to the commencement of the action. Judgment was sought against appellant upon its statutory liability as a holder of shares of stock of the Westside Electric Company. In the complaint it was alleged that appellant was a corporation organized and existing under the laws of the territory of Arizona and authorized by its articles of incorporation to subscribe for, own and hold stock in other corporations. It was not alleged that appellant was doing business in the state of California at the time of the service of summons, or at all, or that it had a managing agent, cashier, or secretary within this state. The affidavit purporting to show service of summons recited that the person making the service had "on the twenty-ninth day of August, 1910, personally served summons in said action upon defendant Kern River Mining and Power Company, in said county of Los Angeles,…