Miller v. Superior Court

DOOLING, J. Petitioners, two minors both under the age of 14 years, by their guardian ad litem seek a writ of prohibition to restrain the Superior Court of Los Angeles County from proceeding against them in an action in which they are named as defendants, claiming that they were not properly served as such defendants.

In the subject superior court action John and Marion Graniczny appear as plaintiffs and the two minor petitioners and their parents, Arlo and Helen Jean Miller, are all named as defendants. Prior to October 18, 1960, each of the parents Arlo and Helen Jean was served with summons and complaint and on October 18, 1960, they filed their answer in the action in response to such service.

“On Thursday, December 15, 1960” (quoting from the affidavit of the father Arlo Miller,1 filed in the superior court in support of a motion to quash the service of summons upon the minor defendants) “a man representing himself to be a process server left with me a copy of the Summons and Complaint in the above-entitled action, and indicated that he was serving me as Defendant Arlo Miller. He also: (1) left a copy of the Summons and Complaint with my minor son, Mark Miller, stating that he was serving him as Defendant Mark Miller; (2) left a copy of the Summons and Complaint with my minor son, Lowell Miller, stating he was serving [51]him as Defendant Lowell Miller; and (3) left a copy of the Summons and Complaint with my wife, Helen Jean Miller, stating that he was serving her as Defendant Helen Jean Miller, sued herein as Jane Doe Miller.” The superior court denied the motion to quash upon this showing, and the question presented to us in this proceeding is whether it committed error in doing so.

Section 411, subdivision 3, Code of Civil Procedure, provides; “The summons must be served by delivering a copy thereof as follows; . . .

“3. If against a minor, under the age of 14 years, residing within this State: To such minor, personally, and also to his father, mother, or guardian. ...”

Petitioners take the position that because the second service upon the parents was “as defendants” and not as “parents of the minors,” the service did not comply with the requirements of the quoted section of the code. They rely upon Akley v. Bassett, 189 Cal. 625, 639 [209 P. 576], and Bank of America v. Carr, 138 Cal.App.2d 727, 737 [292 P.2d 587]. In Akley the only service upon the minor, who was 12 years old, was by the delivery of a copy of the complaint and summons to her personally, and no copy was delivered to either her father or mother, or to any guardian or to any other person designated by subdivision 3, section 411, Code of Civil Procedure. (189 Cal. at pp. 637-638.) In Akley the failure to comply with the statute was clear and the ease is not authority on the facts before us. In Bank of America v. Carr both Rose Carr and her son Rey, who was under 14 years of age, were named as defendants. Summons was served by delivery of one copy to the mother Rose and one copy to her son Rey. The court held that service was not complete as to the son Rey, saying: ‘1 That Rose was served as defendant is not sufficient.” (138 Cal.App.2d at p. 737.) The court quoted in support of this holding from 27 American Jurisprudence at page 858: “A statute requiring process against an infant to be served on his father, mother, or guardian is not complied with by service on a parent in his capacity as defendant only; where the parent is also a party defendant, he must be specially served for the infant in order to bring the latter before the court. ’ ’ The court did not note that this quoted passage from American Jurisprudence is supported by only one cited ease: Gibson v. Currier, 83 Miss. 234 [35 So. 315]; nor that in the later case of Baldwyn v. Thompson,