Bley v. Dessin

STURTEVANT, J.

These are motions to dismiss appeals. After the transcripts had been filed in the above-entitled actions counsel entered into a stipulation that the two appeals could be consolidated and heard and determined as one appeal.

The motion in the first case involves the following facts: On December 4, 1934, the plaintiff filed a complaint asking a judgment for moneys claimed to be due by reason of the breach of certain contracts. The summons was served on II. W. Dessin and on W. J. Dessin. Later they appeared and filed demurrers to plaintiff’s complaint. The demurrers were sustained and the plaintiff filed an amended complaint. The same defendants filed demurrers to the amended complaint, which were sustained and the plaintiff filed a second amended complaint. After that pleading had been filed the plaintiff filed with the clerk a request for a default, but the record does not show whether the clerk made the entry. Counsels’ briefs assume that the entry was not made. Following the claims of counsel we will assume that such was the fact. Thereafter the attorney for the plaintiff applied to the court to enter the default of Dessin Brothers, a co-partnership, and as such named as one of the defendants by the plaintiff. That application was made in open court on October 24, 1935. On the same day the trial court made an order allowing the plaintiff to make an amendment on the

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face of his complaint and then ordered judgment in favor of the plaintiff. Thereafter, on March 3, 1936, the plaintiff filed a formal judgment which recites the application of the plaintiff made in open court, that evidence both oral and documentary was taken, and then follows a formal judgment in favor of the plaintiff against Dessin Brothers, a copartnership, for $816.73. The summons was filed on January 21, 1935. Attached to it was a return in the form of an affidavit by M. F. Boland. That affidavit contains an allegation “that he personally served the within summons.on the 4th day of December, 1934, on W. J. Dessin individually and as a partner of Dessin Brothers, a copartnership, and upon IT. W. Dessin on the 5th day of December, 1934, individually and as a partner of Dessin Brothers, a copartnership, defendants herein named, by delivering to each of said defendants personally in the county of San Mateo a copy of said summons attached to a copy of the complaint in the action therein named”. On the 11th day of June, 1938, Dessin Brothers served a notice that they would move “the said court to quash the service of summons, or purported service of summons heretofore made on Dessin Brothers designated •in the above-entitled cause as Dessin Brothers, a copartnership, and upon H. W. Dessin and W. J. Dessin, doing business under the firm name and style of Dessin Brothers, designated in the above-entitled cause as Dessin Brothers, and to set aside and to vacate all proceedings herein based upon said purported service of summons, including the entry of default of Dessin Brothers, designated herein as Dessin Brothers, a copartnership, and judgment thereon, and said defendants will further move the court to recall and quash the writ of execution that has been issued on said judgment”. That motion was denied on June 29, 1938, and a minute entry was made on that date. On July 1, 1938, a formal order to the same effect was signed by the trial judge and filed with the clerk. From that order Dessin Brothers, a copartnership, filed a notice of appeal on July 11, 1938. It is that appeal which the plaintiff has moved to dismiss as herein-above stated.