DeBrincat v. Mogan

California Court of Appeal Sep 21, 1934 No. Civ. 9547Published

Before: Nourse

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Holding. In actions in personam, the court in which process is first served acquires exclusive jurisdiction over the entire controversy. However, the court may exercise its discretion to deny a writ of mandate to stay proceedings if no injustice or prejudice to the parties is shown.

Issues

Does exclusive jurisdiction in concurrent in personam actions attach to the court where the complaint was first filed or where process was first served?
Should a writ of mandate issue to stay proceedings in a court of concurrent jurisdiction when no prejudice is shown?

Disposition. denied

Quotations verified verbatim against the opinion

“the unbroken current of authorities is to the effect that priority of jurisdiction is determined by the date of the service of process”

“the court in which process is first served has jurisdiction over the whole litigation”

“This writ is ordinarily one of discretion and does not issue as a matter of absolute right when not necessary to prevent an injustice to the parties.”

NOURSE, P. J.

This is an original proceeding in

mandamus.

The petitioner and one Whitfield, both residents of the city and county of San Francisco, were involved in a collision in San Mateo County from which both claimed damages. On February 9, 1934, a complaint was filed by

[9]

Whitfield in the Superior Court of San Francisco seeking damages from petitioner. On February 13, 1934, petitioner filed a complaint in the Superior Court in San Mateo County seeking damages from Whitfield. Summons was served in the latter case on the same day. In the former case summons was served on February 17th. Thereafter petitioner applied to the Superior Court in San Francisco for an order staying proceedings in the Whitfield case on the ground that exclusive jurisdiction rested with the Superior Court in San Mateo County since service of process had first been made in the proceeding commenced in that county. This motion was denied and the petitioner seeks a writ of mandate to stay such proceedings.

After denial of the motion here involved WTiitfield applied to the Superior Court in San Mateo County for a similar order staying the proceedings pending in that court. This motion was granted and this is the subject of the second proceeding, against the San Mateo court, numbered 9563, and hereafter determined.

(DeBrincat

Swart, post,

p. 756 [36 Pac. (2d) 247].)

The concurrent jurisdiction of the two courts in the first instance is conceded. (Sec. 395, Code Civ. Proc.) The single question urged by petitioner is whether as between two courts having concurrent jurisdiction of the subject matter of a cause of action

in personam

exclusive jurisdiction of the cause attaches to the court in which the service of process was first made or to the court in which the complaint was first filed.

• The interest in the question has been aroused by the recent decision in

DeBrincat v. Mogan

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NOURSE, P. J.

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