Mills Music, Inc. v. Lampton

MOORE, P. J.

The respondent court having refused to quash service of a summons made upon a corporate defendant, petitioner herein, upon the ground that it was not doing business in this state, this court issued its alternative writ of prohibition to said court staying further proceedings. Said summons had been issued in an action instituted by Lois Goldberg and Selma Shelley against Mills Music, Inc., a foreign corporation, for damages arising from alleged plagiarism in California and for an accounting.

On the 21st day of March, 1940, summons and complaint in said action were served upon one Bernard Pollack as the agent of defendant; thereafter on March 27th said plaintiffs and defendant stipulated that defendant might “have to and including the 13th day of April, 1940, to enter a plea on the above mentioned ease”. April 5, 1940, pursuant to notice of motion theretofore served, said defendant moved the superior court for an order to quash said summons. Although nothing appears to show the ground of its motion, yet, from

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the general context of the petition and exhibits, we must assume that the issue presented was as above stated. The notice stated that “said motion will be based upon this notice and upon the original summons on file herein and upon affidavits and

oral testimony

on behalf of the above named defendant, Mills Music, Inc.”. Thereafter, on the 17th day of April, 1940, the defendant filed an affidavit requesting an order allowing it until "May 7, 1940, within which to plead to the complaint. In the

interim

defendant filed its petition in this court.

The affidavit of petitioner’s agent filed in the trial court contains the following:

“That I, Bernard Pollack, am a member of the professional staff of Mills Music, Inc., which is a New York corporation maintaining offices in the City of New York, State of New York.

“That Mills Music, Inc. maintains a professional office at 1537 North Vine Street, Hollywood, California. That Mills Music, Inc. maintains no bank account in the State of California,