Bell v. Peck

California Supreme Court Sep 8, 1894 No. No. 18266Published

Before: Fitzgerald, Haven, McFarland

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Holding. The court held that the trial court did not abuse its discretion in denying a motion to vacate a judgment where the defendants failed to appear for trial, as there is no statutory requirement for notice regarding the internal transfer of cases between departments of the superior court.

Issues

Whether the trial court abused its discretion in denying a motion to vacate a judgment obtained in the defendants' absence.
Whether the defendants were entitled to notice of the transfer of their case between departments of the superior court.
Whether a judgment rendered in the alternative for the return of property or its value is erroneous.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We have been referred to no rule of that court providing for any such notice, and certainly none is required to be given by the statute.”

“Upon the facts disclosed by the affidavits in this proceeding we cannot say that the court below abused its discretion in denying appellant’s motion to vacate and set aside the judgment.”

Synopsis

Appeal from a judgment of the Superior Court of Fresno County, and from an order refusing to set aside the judgment.

The facts are stated in the opinion of the court.

Fitzgerald, J. This action is brought against the defendant Peck as principal, and the defendants Victor and Noble as sureties on Peck’s official bond as constable, to recover damages for breach of the condition thereof “that he and said Peck would well, truly, and faithfully perform the duties of his said office during his said term.”

[36]The breach of official duty complained of is that Peck in his official capacity as constable, under and by virtue of an “attachment or execution” issued against the property of other parties, illegally seized and converted the property of plaintiff described in the complaint.

The complaint was demurred to generally upon the ground that it did not state facts sufficient to constitute a cause of action, and specially upon the following among other grounds not necessary to be stated:

1. That the defendants Victor and Noble, sued for breach of contract, were improperly joined with the defendant Peck, sued as a trespasser.

2. That several causes of action were improperly joined, to wit, a cause of action for injuries to property and a cause of action founded on contract.

The demurrer was properly overruled upon these grounds on the authority of Van Pelt v. Littler, 14 Cal. 194; Black v. Glasby, 97 Cal. 482; and Sam Yuen v. McMann, 99 Cal. 497. The case of Ghiradelli v. Bourland, 32 Cal. 585, cited by appellants as authority to the contrary, is not in point. As to the other grounds of demurrer, it is sufficient to say they are equally untenable. Upon the overruling of the demurrer the defendants answered, and thereupon, without notice to the defendants or their attorney, the case was assigned or transferred by the judges of the superior court of Fresno county from Department Two, where it had laid without being set for trial for more than two years, to Department Three of that court, and by them ordered to be placed on the trial calendar of that department. Notice was thereafter published in two newspapers of general circulation in that county that on April 4, 1893, this calendar would be called, and the cases thereon set for trial, and on that day it was called, and this case set for trial in that department for June 22d following. After-wards this calendar was published in the same newspapers, and on the day stated the case was called for trial, and neither of the defendants or their attorney appearing, the court proceeded with the trial of the

Bell v. Peck

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