Norton

Before terms of court were abolished, it is clear that a default judgment entered upon a false return of personal service of summons could have been set aside upon motion made within the term. The abolition of terms cannot be held to have abolished the remedy by motion, but only the limitation of time within which the motion must be made; and if, under section 473 of .the Code of Civil Procedure, a defendant may be relieved on motion from a default *394 judgment taken against him through his mistake or excusable neglect, provided his motion is made within a reasonable time, not exceeding six months, a fortiori he should be relieved on motion made within the same time when he has been guilty of no neglect.

None of the decisions cited are in conflict with this view. They merely hold that judgment will not be vacated upon motion made after the lapse of the prescribed period, unless it is void upon its face, which is quite consistent with the proposition that a motion made within the statutory period may be granted as well when the defendant is wholly without fault as when he has been guilty of neglect, mistake, etc.

As to the conditions upon which the order should be made, the…

This is an appeal by plaintiff from an order of the superior court granting a motion of defendant to quash the service of summons, to set aside and vacate the default of defendant, and to set aside and vacate the judgment which had been entered in the case In favor of plaintiff. The appeal was heard in Department Two, and the order of the court below was there, upon an opinion prepared by Belcher, C., affirmed. (Post, p. 394.) Upon a petition by appellant, urging strongly that there was no authority in the court to grant said motion, a hearing was ordered in Bank. After a further and full consideration of the point made, we are satisfied that a correct conclusion was reached in Department.

The respondent is a corporation formed under the laws of Kansas, and having its principal place of business in and being a resident of that state. The action, which is in personam, was commenced in San Diego County, and the sheriff of that county returned that he had personally served the summons, on the 19th of November, 1890, on K. H. Wade, general manager of defendant, “ by delivering to said defendant, personally, in the county of San Diego, a copy of said summons,” etc. No appearance…