Bethlahmy v. Customcraft Industries, Inc.

McMURRAY, J. pro tem.

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This is an appeal taken from the denial of appellant’s motion for relief from a default judgment entered against him. The default was entered upon suit for enforcement of his written guarantee of defendant Customeraft’s obligations. Appellant’s attorney withdrew prior to trial and the appellant has since represented himself.

Appellant moved to vacate and set aside the default judgment. He correctly contends that Code of Civil Procedure, section 594, provides that a default judgment may be entered only when the court is satisfied “. . . that the adverse party has had five days notice of such trial. . .” The appellant’s basic ground for reversal is that the five-day notice thus required was not given him. In support of this argument, he cites section 1013 of the Code of Civil Procedure which provides in part, that in case of service by mail, the notice must be “. . . addressed to the person on whom it is to be served, at his office address as last given by him on any document

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which he has filed in the canse and served on the party making service by mail; otherwise at his place of residence. . .” He contends that the statute must be interpreted so as to require that such notice be sent to his residence unless he

personally

filed or served a document on his opponent which indicated his business address. Appellant contends that no documents were ever filed by him, and that the notice was therefore improperly given.

The record here indicates that the appellant had retained counsel until that counsel’s motion to withdraw was granted on May 27, 1959. Prior to that time, any action taken by the attorney of record during the course of the litigation on behalf of his client was binding on the client under common agency doctrine. (See generally 6 Cal.Jur.2d, Attorneys at Law, § 149.) The scope of this agency included all authorized pleadings, and, while the agency was terminated by the granting of the motion to withdraw, it included the right to file the documents incident to that withdrawal. Here, appellant’s counsel indicated appellant’s business address in the notice of motion to withdraw, and so clearly satisfied the requirement of section 1013,