People Ex Rel. Southwest Exploration Co. v. City of Huntington Beach

BARNARD, P. J.

This is an appeal from an order granting a new trial. The action is one in quo warranto to test the validity of a proceeding by which it was sought to annex 9 square miles of ocean area to the defendant city. It was brought pursuant to leave to sue in the name of the People of the State of California which was granted by the attorney general. This permission has never been revoked or modified. The complaint was entitled: “The People of the State of California, upon the Complaint of

Southwest Exploration Company, a California Corporation, Relator,

v.

City of Huntington Beach

(and certain of its officers).” It was signed by the attorney general and several attorneys for the relator. A deputy attorney general assisted at the trial, which was mainly conducted on the part of the plaintiff by one of the attorneys for the relator. In the signing of stipulations, in serving notices and pleadings, and in all other respects up to and including the notice of entry of judgment, the attorneys for the defendants consistently recognized the attorneys for the relator as being attorneys in the action.

A judgment in favor of the defendants was entered, and notice thereof was given on April 8, 1953. A notice of intention to move for a new trial was filed on April 16, 1953, giving notice that the “plaintiff-relator” would make application to the court for an order granting a new trial on all the issues involved. This notice was signed by the attorneys for the “Plaintiff Relator,” including Cameron W. Cecil, but was not signed by the attorney general or any of his deputies. The motion for a new trial, first set for hearing on May 8, was continued to May 15, 1953. On that date, without passing on the motion for a new trial, the court entered a minute order reciting that the defendants’ objection

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to the hearing of the motion was sustained “on the ground that the motion was not made by the attorney general and that relator could not make such a motion, and that the court has no jurisdiction to hear the motion.”

On May 22, 1953, notice was filed that “the plaintiff-relator, The People of the State of California, ex rel Southwest Exploration, a California Corporation,” would on May 29 move the court “for an order (1) to reconsider and to set aside and to vacate its order denying a hearing on the Motion for New Trial and (2) for a hearing on the Motion for New Trial.” The notice stated the grounds upon which these motions would be made; and that they would be based upon an affidavit and points and authorities filed therewith, and upon the records in the case including the leave to sue. The affidavit of John F. Hassler filed therewith stated, among other things, that at all material times he has been a deputy attorney general and one of the attorneys for the plaintiff-relator in this action; that authority to bring the action was given by the attorney general, his regulations had been complied with, and such authority has not been revoked or modified; that pursuant to such leave and to such regulations Cameron W. Cecil was expressly authorized by the attorney general to appear as attorney of record for and to represent the plaintiff-relator, to sign all notices of motion, stipulations, briefs and other papers, and to make and present such motions and arguments as might be necessary; that said Cecil as such counsel has prepared and submitted to the attorney general for consideration and approval all papers filed on behalf of said plaintiff-relator, and such papers were filed upon the instruction of the attorney general; that specifically this notice of intention to move for a new trial was filed on April 16 upon the instruction of the attorney general; and that said Cecil was instructed by the attorney general to appear and present said motion, on behalf of the plaintiff-relator, on May 15, 1953. A copy of the regulations involved, as set forth in title II of the Administrative Code, and 14 pages of points and authorities were also filed.