Carson v. Lampton

DORAN, J.

An action was commenced in the Superior Court of Los Angeles County, on June 12, 1933, by one Mary C. Carson on a joint' obligation of Consolidated Bldg. Corp., a corporation, P. T. Barnes and Mrs. P. T. Barnes, husband and wife. All of said parties, joint obligors, were named therein as parties defendant. Summons was issued on June 12, 1933, and service of summons and complaint was had upon all of the defendants except defendant Mrs. P. T. Barnes, who did not appear in the action at any time. On July 17, 1933, a default judgment was rendered in favor of plaintiff and against the defendants who were served in the action.

The judgment, however, was only partially satisfied. Three years, three and one-half months later, to wit, on November 2, Í936, plaintiff Mary C. Carson requested of L. E. Lampton, county clerk of said county, appellant herein, that a summons in proceedings against a joint debtor (pursuant to sections 989 et seq. of the Code of Civil Procedure), be issued against defendant Mrs. P. T. Barnes who had never been served. The county clerk refused to issue the summons, taking the position that he was without authority to do so more than three years after the issuance of the original summons, and more than three years after the rendition of the original default judgment.

A petition was filed by plaintiff in the superior court, requesting that a writ of mandate issue against said county clerk commanding him to summon Mrs. P. T. Barnes, as re-

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quested. An alternative writ was thereupon issued by the court. A demurrer was filed, and the matter came on regularly for hearing. At the conclusion of the hearing the court overruled the demurrer and, respondent having declined to answer, judgment was ordered for petitioner directing that a peremptory writ of mandate issue against said clerk, as prayed. By the terms of the writ said county clerk was required to issue a summons in proceedings against a joint debtor, directing Mrs. P. T. Barnes to appear and show cause why she should not be bound by the judgment rendered July 17, 1933.

The appeal herein is from the judgment directing the issuance of the peremptory writ, and an appeal from the writ of mandate itself is also attempted.