Hogs Back Consolidated Mining Co. v. New Basil Consolidated Mining Co. , 63 Cal. 121 ( 1883 )

Pee Curiam.

In this case plaintiff had judgment against defendant by default; the court below denied a motion to open the default, and defendant appealed.

The following is the affidavit of service of the amended complaint: —

“D. W. Spear of said Placer County, being duly sworn, says: That he is a citizen of the United States, and is, and was on the 20th day of October, 1881, over eighteen years of age, and not a party to this action. That on the 20th day of October, 1881, the amended complaint in the said action was filed; that forthwith, to wit, on the 20th day of October, 1881, he, affiant, deposited in the postoffice at Auburn, Placer County, California, a copy of the said amended complaint, enclosed in a sealed envelope, postage - prepaid, and directed to Edward Lynch (the attorney for defendant herein), at No. 324 Pine Street, San Francisco, California, the place where said attorney resides and has his office.”

The affidavit of service was insufficient, and therefore the default in the case was improperly entered. (Reed v. Allison, 61 Cal. 461; Cunningham v. Warnekey, 61 Cal. 507; Moore v. Besse, 35 Cal. 185; People v. Alameda T. R. Co. 30 Cal. 182; § 1012, Code Civ. Proc.)

Judgment reversed, and cause remanded with leave to apellant to file an answer to the complaint within twenty days after the filing of the remittitur herein in the court below.