Younglove v. Steinman

Works, J. This is a suit to enjoin the enforcement of an assessment of the stock of a corporation, on the grounds that the meeting of the board of directors at which the assessment was ordered was not legally called, and that the assessment was not made for any of the [376]purposes allowed by law. There was a temporary injunction. The suit was commenced in the county of Santa Cruz, and subsequently transferred to the county of Sacramento. On the 13th of August, 1888, that being the day the order transferring the cause was made, the defendants gave notice that they would, on the 23d of the same month, move the superior court of Sacramento County to dissolve the injunction. At the time and place named in said notice the attorney for the plaintiff appeared and objected to the hearing of the motion, on the ground that at the time the notice was served upon him the papers in the case had not been filed in that court. His objection was overruled, the motion heard, and the injunction dissolved. A trial was subsequently had, which resulted in findings and a judgment in favor of the defendants. A motion by the plaintiff for a new trial was denied, and this appeal is from the order dissolving the temporary injunction, the final judgment, and the order denying a new trial.

The appellant contends that the notice of the motion to dissolve was not given in time, and that it was not effective as a notice, for the reason that the court in which the motion was to be heard had no jurisdiction of the case at the time it was given. There is no force in either of these points. The notice was given for ten days, which was sufficient as to the time. (Code Civ. Proc., sec. 1005.) The mere giving of the notice was not a proceeding in court, and it was not necessary to its validity that the superior court of Sacramento County should have had jurisdiction of the case at that time. It was enough that it had jurisdiction when the motion was made.

The further point is made, that the notice stated that the motion would be “based upon the papers, pleadings, and records in said cause, and upon affidavits hereafter to be filed,” and that the court below erroneously admitted in evidence an answer filed by the defendants [377]after the notice was given. There was no error in this ruling. The notice did not confine the defendants to the use as evidence of such pleadings only as were on file at the time it was given, but if it had, the court might, in its discretion, very properly hear evidence outside of that mentioned in the notice, if necessary to aid it in arriving at a proper determination of the question.