Spencer v. Barnes

California Court of Appeal Apr 6, 1935 No. Civ. 5331Published

Before: Rankin

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Holding. The court held that the order setting aside the satisfaction of judgment was void for lack of jurisdiction because the appellant was not properly served with notice of the motion. Service upon an attorney who is not the attorney of record for the specific proceeding does not constitute valid notice to the party.

Issues

Whether the trial court had jurisdiction to enter an order setting aside a satisfaction of judgment without proper notice to the defendant.
Whether service of a motion upon an attorney who is not the attorney of record for the party in that proceeding constitutes valid service.

Disposition. reversed

Quotations verified verbatim against the opinion

“Appellant was entitled to notice of the motion. Notice to G. M. Spicer was not notice to appellant for the reason there is no showing that Spicer was attorney of record for appellant.”

“the fact that the attorney may have represented the party in other matters does not authorize service in a matter in which he does not appear as an attorney.”

RANKIN, J.,

pro tem.

Appellant prosecutes this appeal from an order entered herein February 2, 1933, setting aside satisfaction of judgment, substituting parties plaintiff, and for enforcement of judgment and issue of execution.

A. B. Spencer, plaintiff in this action, secured a money judgment against appellant, as defendant therein, on July 29, 1912, and the judgment became final about August, 1914. On June 19, 1930, Spencer assigned said judgment to Grace D. Barnes, and the following day Grace D. Barnes executed and delivered a full satisfaction of the judgment.

This proceeding was instituted by Floyd S. Sisk, as trustee in bankruptcy of the estate of Andrew M. Strong, a bankrupt; George Gardner, as trustee in bankruptcy of the estate of Lewis R. Works, a bankrupt; and Katherine Stigle Etheridge, Oscar Hayter and Mary P. Slater, none of whom were parties to the action, by filing notice of motion to set aside the satisfaction of judgment and to be sub

[37]

stituted as parties plaintiff and for enforcement of the judgment and issue of execution. The motion is addressed to Legene S. Barnes, defendant, and to G. M. Spicer, his attorney, and also to other persons. So far as disclosed by the record, the moving parties made no attempt to serve anyone with notice of the motion except G. M. Spicer. Proof by affidavit was made that G. M. Spicer was served by mail with a copy of the moving papers.

Appellant raises and argues several points in his brief, but one of which is necessary to discuss in this opinion.

Appellant’s first contention is that he had no notice of the motion, therefore the court had no jurisdiction to make the order appealed from. Answering this contention, the respondent argues that G. M. Spicer was attorney for appellant and that service upon such attorney constitutes due service upon appellant. This, of course, is a proceeding in which notice is necessary. None of the parties thereto, except the moving parties, were present in court when the motion was heard and the order itself is in form an

ex parte

order.

Spencer v. Barnes

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RANKIN, J.,

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