Molenaar v. Superior Court

BARNARD, P. J. This is an application for a writ of prohibition seeking to prevent the respondent court from proceeding to hear and determine an appeal from a justice’s court.

The petitioner brought an action in a justice court against Harry J. Tilton and Isabel B. Antrim Tilton, who at that time were husband and wife, to recover for professional services alleged to have been performed at the request of each of the defendants. Both defendants were served with summons and through an attorney filed a joint answer in the form of a general denial. On December 18, 1933, a judgment was entered in favor of the plaintiff and against the defendant Isabel B. Antrim Tilton for $200, the judgment providing “that the plaintiff herein take nothing from the defendant Harry J. Tilton”. On January 9, 1934, one of the defendants, Isabel B. Antrim Tilton, through the same attorney who had represented both defendants at the trial of the action, filed a notice of appeal, with a bond, the notice stating that the appeal was taken “on the question of law and fact, from the judgment herein rendered by the above entitled court and from the whole thereof”. Notice of the appeal was served on the plaintiff in the action by serving the attorney who had represented him at the trial, but no notice was served on the defendant Harry J. Tilton, in whose favor judgment had been rendered. The notice of appeal was addressed to “the plaintiff above named and to C. C. Pease Esq., his attorney”. On January 22; 1934, the plaintiff in that action filed in the superior court a motion to dismiss the appeal on several grounds, including the ground that notice of appeal had not been served upon one of the adverse parties, to, wit, Harry J. Tilton. The motion to dismiss the appeal was denied and the cause placed on the civil active list to be set for trial and this proceeding followed.

The respondents have answered and filed a brief, the contention being that the defendant Harry J. Tilton was not an adverse party and no service upon him was required, and that, even if he were an adverse party, no service was required because the same attorney had represented both de[645]fendants at the trial, and, therefore, the. attorney for Harry J. Tilton had knowledge of the fact that an appeal had been taken.

The respondents rely upon the following cases: Senter v. De Bernal, 38 Cal. 637, Randall v. Hunter, 69 Cal. 80 [10 Pac. 130], Terry v. Superior Court, 110 Cal. 85 [42 Pac. 464], Farrell v. Ontario, 49 Cal. App. 659 [194 Pac. 69], O’Malley v. Carrick, 60 Cal. App. 48 [212 Pac. 45], and Jackson v. Superior Court, 20 Cal. App. 638 [129 Pac. 946], Other than the last case cited, all of these cases come within the exception noted in MacDonald v. Superior Court, 101 Cal. App. 423 [281 Pac. 672], where the court said: “An examination of these cases will show that the codefendants had defaulted or consented to the judgment rendered against them, or the action as to them had been dismissed.” In all of those cases, by reason of the pleadings, the default of a party, a dismissal as to him, or some similar fact, a further hearing could not affect the parties in question and for that reason it was held that service on them was not necessary. An apparent exception exists in the case of Jackson v. Superior Court, supra. Some of the language used in the opinion in that case supports the contention of respondents. However, the facts in that case, although not fully set forth in the opinion, bring the case within the exception just noted, since the plaintiff in that action had expressly disavowed any claim against the defendant who was not served.