Gaines v. Superior Court

FRAMPTON, J. pro tem.

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Petitioner seeks a writ of mandate to compel respondent court to quash service of complaint and summons in an action pending in which petitioner is named as a defendant.

Petitioner has for 57 years last past been a resident of the State of New Jersey. He is an attorney at law admitted to practice in that state. He is not now nor has he ever been a resident of the State of California. He is attorney of record for his codefendant, Guardian Mortgage Corporation, a corporation, in an action pending in the lower court. He came to California for the sole purpose of appearing on behalf of his client. On August 11, 1961, the respondent court made and entered its order associating petitioner with other counsel to represent Guardian in the matter then pending. On the above date petitioner had not been named as a party defendant. On motion of plaintiff the hearing in the matter then pending was set over to August 18, 1961. On the latter date petitioner appeared to represent his client at which time, in the courtroom, he was served with a summons on amended complaint and amended complaint naming petitioner as an additional defendant in the same cause of action upon which petitioner had appeared as counsel for Guardian. Petitioner moved to quash service of summons which motion was denied.

Petitioner claims he is entitled to immunity from service of process in California because of his presence here

[751]

for the sole purpose of representing his client in an action in which he was at the time of such service attorney of record.

The rule is summarized as follows: “While in some states the exemption does not exist at all, in a few states the courts have held that attorneys at law, while in attendance on court, are exempt from the service of summons or other process not in arrest. Also, in some jurisdictions, the privilege of exemption from service of process of nonresident witnesses and suitors has been held to be applicable to nonresident attorneys. However, this exemption does not apply to a nonresident attorney who is not an attorney of record [citing

Tadge

v.

Byrnes,