HERSHENSON v. HERSHENSON

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District Court of Appeal, Second District, Division 2, California.

Bertha HERSHENSON, Plaintiff and Appellant, v. Edward HERSHENSON, Defendant and Respondent.

Civ. 25769.

Decided: May 21, 1962

Joseph B. Copelan, Beverly Hills, for appellant. Greenwald, Landrum & Baim, Beverly Hills, for respondent.

This is an appeal by plaintiff from an order quashing service of process on defendant.

On February 14, 1961, plaintiff filed an action for separate maintenance against her husband, and summons was duly issued. The court also issued an order to show cause re attorney's fees, court costs, alimony pendente lite and a temporary restraining order. The order to show cause was set for hearing on February 23 at 9:00 a. m. in the West Regional Department (Santa Monica) of the Superior Court. This hearing was continued by court order to March 3 at the same hour. On February 28 defendant made a speecial appearance and filed a notice of motion to quash the service of summons ‘upon the grounds that the court alcks jurisdiction over the defendant * * *’ and stated that said motion ‘will be based upon the provisions of the California Code of Civil Procedure, Section 216.1 (sic) [416.1 CCP] * * *’ In support of said motion defendant filed his affidavit, stating, inter alia: ‘Affiant was not shown as a part of the purported service herein of (sic) any original Summons; that the copy of the Summons delivered to affiant is incomplete in that certain material portions thereof have not been filled in; that said copy is attached hereto and made a part hereof and incorporated herein by this reference; that on its face, said Summons is fatally defective in that it shows no number, no date and shows no facts of issuance, such as signature, seal, etc.; that said purported copy of Summons is the copy received by affiant from the process server on February 14, 1961, and no other copy has ever been received by affiant.’

At the hearing on defendant's motion to quash, the process server Carlin testified that at 5:57 p. m. on the 14th day of February, 1961, he served the defendant by personally handing to him at 345 South Elm Drive, Beverly Hills, the following documents in this case: copy of (a) order to show cause and restraining order together with copy of Wife's Questionnaire and blank form of Husband's Questionnaire on order to show cause and points and authorities; (b) summons; (c) complaint for separate maintenance; and (d) certificate of assignment and transfer. According to Carlin's testimony, all these papers were stapled together as one package with the order to show cause on top. The original of all of these documents appears to be complete and the copies made to conform except that the copy of the summons does not contain (1) the number of the case and the department to which it has been assigned; (2) the date of its issuance; and (3) the name of the County Clerk's deputy who issued it.

Defendant does not deny that he received the aforementioned documents but it appears that he did not deliver to his counsel copies of the order to show cause and restraining order and other papers incident thereto.

Errors or omissions in conforming a copy of a summons to the original do not justify quashing service unless the party served has been misled or his substantial rights affected. (McGinn v. Rees, 33 Cal.App. 291, 294, 165 P. 52; Fraser v. Oakdale Lumber etc. Co., 73 Cal. 187, 189, 14 P. 829; Washington County v. Blount, 224 N.C. 438, 31 S.E.2d 374. In the case last cited (31 S.E.2d at p. 375) the court, in passing on a question substantially the same as the one here presented, stated: ‘Where the statute requires service of summons by delivery of a copy of the original writ to the defendant, such copy should, as a matter of course, conform exactly to the original, but frequently errors and omissions occur in the preparation of copies and it becomes necessary for the courts to determine the effect of particular clerical errors and omissions. In such cases it seems to be the general rule to disregard a clerical error or an omission where the party served has not been misled. Clerical errors or omissions in the copy of a summons delivered to a defendant will not affect the jurisdiction of the court, when they consist of mere irregularities, such as the ‘want of the signature of the officer who issued it, the omission of the date of summons, or the failure to endorse thereon the date and place of service,’ 50 C.J. Sec. 79, p. 484; * * *.'

It is apparent that all the data omitted from the copy of the summons is routine information and consists of mere irregularities which in no way mislead or affect the substantial rights of the defendant. The number of the case is primarily for the convenience of the court. The department to which the case was assigned was adequately referred to by the certificate of assignment showing that it was transferred ‘to the West Regional Department of the Superior Court of Los Angeles County’ based upon the plaintiff's sworn statement that she ‘resides within the territorial jurisdiction of said department, to wit: 345 South Elm Drive, Beverly Hills, California.’ The omission of the date on the copy of the summons does not in any way prejudice the defendant. The important thing is that he was commanded to appear within a certain number of days after service of summons upon him. The omission of the name of the deputy clerk who signed the original summons is merely an informality which could not possibly prejudice the defendant's rights or in any way mislead him. Defendant, who is an attorney both in Illinois and California, has seized upon minutiae and has attempted to inflate their importance as a basis for avoiding the jurisdiction of the California courts in this domestic controversy but he had failed to make any showing that the omissions in the copy of the summons in any way either misled him or affected his substantial rights.

Since it appears from the record that defendant's motion to quash was granted on the ground that the service of process was invalid, it is unnecessary to consider other arguments in the briefs.

Plaintiff has attempted to appeal from an order denying her motion to vacate the court's prior order quashing service of process which is here under review. Since the order quashing service of process is an appealable order, it follows that no appeal lies from the trial court's order denying her motion to vacate. (3 Witkin, Cal.Proc., sec. 26, pp. 2170–2171.) Therefore the purported appeal from the order denying motion to vacate must be dismissed.

The order quashing service of process is reversed.

The purported appeal from the order denying the motion to vacate is dismissed.

FOX, Presiding Justice.

ASHBURN and HERNDON, JJ., concur.

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