Wheatland v. Maloney

California Court of Appeal Dec 6, 1930 No. Docket No. 178.Published

Before: Warmer

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Holding. The court held that a defendant in a libel action is entitled to recover $100 in attorney's fees under the statute upon the dismissal of the action, provided the defendant employed an attorney and agreed to pay at least $100 for services, regardless of whether the plaintiff subsequently filed an identical complaint.

Issues

Does the dismissal of a libel action before service of summons or appearance entitle the defendant to statutory attorney's fees?
Does the filing of a second, identical complaint after the dismissal of the first action defeat the defendant's right to recover attorney's fees for the dismissed action?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant in a libel action when the same has been dismissed is entitled to recover $100 to cover attorney’s fees under the terms of the statute, conditioned only upon two facts: First, that he has employed an attorney to defend against the action filed; second, that he has paid or agreed to pay a sum in at least the sum of $100 for such service.”

“The filing of the new or second complaint instituted another action, even though identical in form, to the same extent as though the new or second complaint had been based upon an entirely distinct state of facts and stating an absolutely different cause of action.”

[290]

WARMER, J.,

pro tem.

The admitted facts, so far as pertinent here, are as follows: On February 11, 1930, plaintiff filed his complaint alleging libel against the defendants, M. C. Maloney et al. The complaint sets out the alleged libelous matter, alleges its falsity and prays for judgment for damages. The clerk, without requiring the bond provided for in the act of March 23, 1872, filed the complaint and issued summons, but no summons or notice of any kind was ever served on the defendants or any of them. On February 17, 1930, a dismissal of the action was entered by the clerk on the written order of plaintiff's attorney, at which time no appearance of any kind had been made. Plaintiff, at the time of the dismissal above referred to, immediately filed another complaint identical with the complaint in the action that had just been dismissed, at which time plaintiff gave the statutory bond, and thereupon caused summons to be issued and served. Said action is now pending. On February 20, 1930, the defendants filed a notice of motion that they would move the court to enter judgment against the plaintiff in the sum of $100 for attorney’s fees in said action theretofore dismissed. The principal point presented is where a complaint in a libel action has been filed by the clerk and summons issued in the ease without requiring the statutory bond and same has been dismissed.by the clerk on order of plaintiff’s attorneys before service of summons or appearance of the defendants of any of them, does the statute authorize the recovery by the defendants therein of the sum of $100 attorney’s fees allowed by law, or does the dismissal of said action under said circumstances defeat such right

When a complaint is filed; service of summons is not a necessary prerequisite to the right of the defendant to appear and defend such action. The summons duly served is simply a mandate requiring the appearance of said defendant in said action under penalty of having judgment entered for failure so to do. A defendant, who knows an action was pending against him, could proceed to retain counsel and begin the preparation of his defense to said pending action. If defendant has a right to' appear in an attack upon an alleged cause of action after complaint filed, then he has a right to appear by attorney. Having such a right in a pending action presupposes his right to retain

Wheatland v. Maloney

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WARMER, J.,

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