Mayer v. Superior Court

TYLER, P. J. Petition for writ of review. It is recited therein that on March 22', 1927, respondent court made an order for the publication of summons in an action for the annulment of a marriage. It is alleged that the summons has been published and that the court will enter judgment in said cause upon default unless petitioner herein enters a general appearance and contests the same; that defendant in said action duly gave notice of special appearance for motion to vacate and set aside the order of publication and to quash service on the ground that no proper showing was made as a basis for the order, for the reason that it did not sufficiently appear either by verified complaint or by affidavit, that a cause of action existed against defendant, as required by section 412 of the Code of Civil Procedure; that respondent court denied petitioner’s motion. It is then claimed that there is no appeal from said order, for which reason petitioner prays that a writ of review be issued out of this court requiring the Superior Court to certify its proceedings and that thereupon this court issue its order annulling the said order of publication. We are of the opinion that the application should be denied, for the reason that petitioner may have the alleged error reviewed on an appeal from any adverse judgment which may be rendered upon trial, even though a judgment by default be entered. (Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445 [71 Pac. 498]; Lima v. Lima, 26 Cal. App. 1 [147 Pac. 233, 237].) The application is denied. Knight, J., and Cashin, J., concurred.