Manter v. Howard

THOMPSON, J.

Defendant, D. E. Howard, has appealed from a judgment rendered against him and from the order denying his application to vacate and set aside the judgment under section 473 of the Code of Civil Procedure. George T. Goggin, trustee of the bankrupt estate of the defendant, has also appealed from the order refusing his motion to vacate and set aside the judgment.

Plaintiffs brought suit in Shasta County September 4, 1947, for $30,318.18, for money due on the purchase of lumber. Messrs. Carr

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Kennedy appeared as attorneys for the plaintiffs. An attachment was issued against the defendant’s property, which was released upon his furnishing bond for $17,500. Defendant answered, admitting the purchase of the lumber, but alleged that it was unfit for use to a large extent on account of deterioration and dry rot. In a counterclaim defendant asked for damages and credit on the purchase price which when set off against plaintiffs’ demand would leave a balance in favor of the defendants. Mr. Glenn E. Newton appeared as attorney for the defendants. Plaintiffs’ attorneys were notified that unless the defendant, D. E. Howard, could reorganize his business he would be forced into bankruptcy. The case was first set for trial for May, 1948, but was twice

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continued on motion of the defendants. The defendants demanded a jury trial, which was refused. The ease was finally set for trial for June 8, 1948. June 4, 1948, the defendant .Howard filed a petition in bankruptcy in the United States District Court in Los Angeles and was thereupon adjudged a bankrupt. On June 7th Mr. Newton received notice from Sherman W. Sheppard, attorney for the defendant Howard in Southern California, of the filing of said petition and the proceedings thereon. Upon order to show cause, the referee in bankruptcy issued a restraining order against the plaintiff Manter and his attorneys, enjoining them from proceeding with said trial in Shasta County, and from further proceedings until the “Discharge in Bankruptcy” of the defendant doing business as Mill Products Company “is determined.” That restraining order was personally served on plaintiff and his attorneys “in open court,” and called to the attention of the trial judge on June 8, 1948, when the ease came on for trial. Mr. Newton was then present. In effect, he objected to the trial, although he did not specifically so state. When it became evident that the case would then be tried, Mr. Newton asked the court to permit him to withdraw as an attorney for the defendant, which was refused on the ground that the application did not conform to the provisions of section 284 of the Code of Civil Procedure. Mr. Newton then said, “I Avant the record to show that my name be withdrawn as attorney in the case.” Without objection Mr. Newton then withdrew from the courtroom and did not participate in the proceedings which followed. Mr. Carr, the attorney for plaintiff, who was then present, said he would not like to participate in the trial in view of the restraining order against him and his client. The judge then said, with respect to the restraining order, “I believe (it) is invalid. ... It is not addressed to the Court. I am not being restrained here.” Mr. Carr did not participate in the proceedings of the trial. But the court called to the stand and personally examined three of plaintiffs’ witnesses who were then in court. No one appeared as attorney for either side. There was no cross-examination of witnesses. Upon completion of the testimony, the court awarded judgment for plaintiffs in the sum of $12,818.18 and costs in the sum of $397.75. Defendants’ counterclaim was denied. No findings were adopted. The judgment to that effect was signed, filed and entered September 20, 1948.