Gorman v. Superior Court

BARNARD, P. J.

This is an application for a writ of prohibition to restrain the respondents from taking further proceedings in an action growing out of a collision between two automobile trucks, on the ground that the Superior Court of Merced County first acquired jurisdiction through the service of process in another action arising from the same collision.

The collision occurred on March 27, 1937, on U. S. Highway No. 99 at a point about eight miles south of Merced, one of the trucks being driven by this petitioner. An action was filed on April 3, 1937; in the Superior Court of Merced County by the petitioner and a corporation alleged to be the owner of that truck as plaintiffs, in which Daigh and Stewart, as owners of the other truck, were joined as defendants with the driver of that truck and the driver and owner of a Ford coupe which was also involved in the accident. The first service of summons in that action was made on the driver of the Ford coupe at 10 o’clock A. M. on April 5, 1937. On ' April 5, 1937, Daigh and Stewart filed an action in the Superior Court of Fresno County for damages growing out of this collision, naming as defendants the petitioner herein, the driver of the Ford coupe mentioned in the other action, the driver of a Pontiac car which was alleged to have been involved in the collision, and five persons alleged to have been doing business as partners, who are alleged to have been the owners of the truck driven by this petitioner. The five persons last referred to and this petitioner resided in Fresno. Summons in that action was served upon this petitioner about 3 o’clock P. M. on April 5, 1937. On May 14, 1937, Daigh and Stewart filed a demurrer to the complaint in the action filed in Merced County. The driver of the Ford coupe answered in that action and all defendants therein had been served when the petition herein was filed. On April 22, 1937, this petitioner filed in the Superior Court of Fresno County notice of a motion for an order staying proceedings in that action. After a hearing this motion was denied by the respondent judge and this proceeding followed.

In their answer the respondents admit that summons in the Merced County action was served on one defendant about 10

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o’clock A. M. on April 5, 1937, and that summons was served on one defendant in the Fresno County action about 3 P.M. on that day. No contention is made that any earlier service was had in the latter action. It is also admitted that the respondents intend to proceed with that action unless restrained from so doing. It is respondents’ contention that some of the parties reside in Fresno, that the parties to the two actions are not the same, that neither the right of counterclaim nor cross-complaint exists since there is neither mutuality of parties nor mutuality of claims, and that if this writ issues Daigh and Stewart, the plaintiffs in the Fresno County action, would be unable to litigate their claims in one action.