MacDonald v. Superior Court

[694]

Opinion

FILES, P. J.

This proceeding arises out of a petition seeking a writ of mandate or prohibition to overturn an order of the superior court forbidding petitioners to go forward with an appeal from the superior court’s judgment in a civil action. The superior court’s order was made as a sanction for failure to answer postjudgment interrogatories served under Code of Civil Procedure, section 714.5.

In the underlying action on December 14, 1976, David D. Satin and others (hereinafter referred to as plaintiffs) obtained a money judgment against petitioners Dougald and Margaret MacDonald (hereinafter referred to as defendants). Early in January 1977 defendants appealed from that judgment. About January 28, 1977, pursuant to Code of Civil Procedure section 714.5,

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plaintiffs served interrogatories upon defendants by mailing to their attorneys of record Cummins, White, Yokaitis & Rylaarsdam (hereinafter defendants’ attorneys).

No answers having been made, plaintiffs on March 10 made a motion to compel answers to the interrogatories. One of the attorneys for defendants responded with a declaration stating in substance that defendants had moved and had provided no new address, that the interrogatories had been forwarded to defendants in care of their son, who resided in British Columbia, Canada, but the declarant did not know whether his clients had received them.

The motion was heard by the superior court on March 31, at which time the court made the following minute order: “Motion granted. Answers to interrogatories to be filed within 60 days. If they are not filed by that date, the defendants will be barred from prosecuting the appeal further. Notice waived.”

[695]

On May 26 the superior court heard defendants’ motion for reconsideration of its March 31 order, and made the following minute entry: “Motion to reconsider is granted. The prior order shall stand.”