Davies v. Superior Court

McCABE, J., pro tem.

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William F. Davies, a licensed and practicing attorney in this state, seeks a writ of mandate requiring the superior court to quash the service of summons upon him.

On January 8, 1963, an action was filed in the superior court naming petitioner Davies as one of the defendants. Other defendants in the same action were represented by Davies. On January 21, 1963, plaintiff voluntarily filed a dismissal without prejudice of defendant Davies. In the action against the remaining defendants, a pretrial conference was held in June 1963 and the ease set for trial in October 1963. In October a written stipulation was filed to continue the trial date to December 1963. On November 7, 1963, petitioner Davies was served with a copy of the summons and

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complaint. Following this and on November 13, 1963, the court entered an ex parte order setting aside the dismissal of Davies. Subsequently and on November 21, 1963, a pretrial order was made vacating the pretrial order of June 1963. Later, and on November 26, 1963, the matter was taken off calendar. Davies, for himself, made no formal appearance in the case. There is a letter dated November 15, 1963, from plaintiff’s counsel to Mr. Davies informing Mr. Davies he had an open extension in which “to answer the complaint and amendment thereto served on you on November 7, 1963.”

In January 1964, plaintiff substituted the attorneys now appearing on this appeal as its attorneys in place and stead of prior counsel of record.

On March 30, 1964, attorneys for the plaintiff sent a letter to the attorneys then representing Mr. Davies requesting them to file by April 15, 1964, Mr. Davies’ “appropriate pleadings” to the plaintiff’s complaint. On April 10, 1964, Davies filed a motion to quash the service of summons upon the ground that the court had no jurisdiction. The motion came on for hearing on April 20, 1964, and was denied. Davies then filed this petition for writ of mandate.

There is an area wherein the clarity of facts is diffused by varied statements. Petitioner Davies contends that he had no notice of the motion to set aside the dismissal; there was no formal motion to dismiss; there was no affidavit filed and he had no notice of the order setting aside the dismissal. Plaintiff recites that Davies was present in the judge’s chambers at a pretrial hearing on November 15, 1963, when the November 13 order was discussed. Further, plaintiff contends there was a formal motion made to set aside the dismissal, but also states it was oral.