Fallon v. Superior Court

WARD, J.

This is an application for the issuance of a writ of prohibition to the Superior Court of the State of California in and for the City and County of San Francisco and one of the judges thereof to restrain, during the pendency of appeal, the granting of a motion to vacate an order setting aside a judgment.

The litigation had its inception in a case entitled

“Ben Liebman et al.

v.

M. L. Choynski”

wherein plaintiffs for themselves and on behalf of others owning parcels in a tract of land sought to enjoin defendant from erecting or using any building within the alleged restricted tract for commercial purposes. The defendant Choynski filed an answer and a cross-complaint to quiet title. Judgment was rendered in favor of the defendant. Subsequently the petitioners in the present proceeding, as alleged interested parties, filed a motion to set aside and vacate the judgment and to permit them to appear as plaintiffs and file an answer to the cross-complaint ; further, that the issue be tried upon the merits. This motion was granted.

Section 382 of the Code of Civil Procedure permits an action to be brought by one or more parties on behalf of others when the parties are numerous. This is a statutory provision based upon the common law theory of convenience to the parties when one or more fairly represent the rights of others similarly situated who could be designated in the controversy. It is known as the doctrine of virtual representation, and such representees if sufficiently represented are bound by the order or judgment made. The sufficiency of the representa

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tion is generally gauged by the good faith of the representors and the effect of the order or judgment upon the unnamed parties. As a matter of protection to such parties, there is a general rule, subject to exception, that one who has a valuable disclosed interest, as appears directly or indirectly from the pleadings, or who is commonly and generally interested, and has not had his day in court by reason of collusion between some of the parties named in the pleadings, may, if good cause appear therefor, be permitted to intervene or enter the ranks of the plaintiffs or defendants as the facts warrant.