Remillard Brick Co. v. Dandini

NOURSE, P. J.

From an order granting a preliminary injunction upon a complaint asking for the appointment of a receiver and other equitable relief, in which order the trial court also denied without prejudice the application for the appointment of a receiver, the defendants appeal upon a typewritten transcript. The grounds of appeal are: (1) that as to two of the five named- defendants, the court had not acquired jurisdiction; (2) that as to all defendants, the court had no jurisdiction of the subject matter; (3) that the provisions of section 527 of the Code of Civil Procedure were not followed; and (4) that the order was an abuse of discretion.

The complaint was filed on August 18, 1939, and an order to show cause and temporary restraining order was issued on the same day. The order was directed to three of the named defendants, and was served, together with a copy of the complaint on all five. On the return day all five defendants appeared, filed separate affidavits in opposition to the order, opposed an application for a continuance, and demanded an immediate hearing. No objection was made at any time to the form of the order to show cause, the failure to. cite two of the defendants to appear, or to the want of due service upon all five' defendants. After a full hearing of tw;o days the order granting the preliminary injunction was entered, which recites: “it appearing that due, legal and timely notice was given to the defendants herein who entered their appearance and filed counter affidavits. . . . ” No attack is made upon the verity of these recitals.

Since the first question presents the question of jurisdiction of the person the answer is that personal service of process may be waived (section 416, Code of Civil Pro-

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cedure) and that, when a party voluntarily appears generally, and without objection to the manner of service, he will be deemed to have waived objection and to have consented to the subsequent proceeding though there had been no service of notice upon him.

(People

v.

Machen,

32 Cal. App. (2d) 31, 38 [89 Pac. (2d) 173];