Perry v. Dabney

DESMOND, P. J. Plaintiff appeals from an “order of the Court granting defendants’ motion to dismiss and from the . . . order . . . denying plaintiff’s motion for stay and for leave to enter default and/or otherwise proceed in the action,” which orders were made and entered on August 20, 1945. The minute order of that date recites that defendants’ motion was granted and the action dismissed under the provisions of section 581a of the Code of Civil Procedure.

On March 29, 1940, plaintiff, appearing in propria persona, filed an action against defendants in the Superior Court of Los Angeles County. The complaint alleged that defendants were indebted to one Etta Lee Mindrup in the sum of $3,490.15 on an account stated and that the latter had assigned to plaintiff all of her right, title and interest in the account. A copy of the summons and complaint was served upon both defendants in the city of Long Beach on September 26, 1941. The original summons, with proof of service endorsed thereon was duly returned and filed the same day. On October 27, 1941, plaintiff substituted, in place of himself in propria persona, an attorney named John Leo Harris. Six months later and in the month of April, 1942, Harris was inducted into the Navy and insofar as the record shows was still on active duty in the military service of the United States as of August, 1945. Defendants did not file answers at any time and no default was taken or judgment by default entered against them.

Defendants, on July 20, 1945, filed their motion to dismiss the action “for want of prosecution,” pursuant to the provisions of section 581a of the Code of Civil Procedure. Thereafter and on August 16, 1945, present counsel for plaintiff, who had been appointed as such by order of court on August 6, 1945, in the place and stead of John Leo Harris, filed a motion to stay the proceedings 1 ‘ and for leave to enter default and/or otherwise proceed in this action, ’ ’ on the ground that “John Leo Harris, as attorney for plaintiff, is involved in the said law suit and that by reason of the failure of John [397]Leo Harris to cause the entry of a default and default judgment and/or otherwise proceed in this action, the said John Leo Harris, a person in the military service, would he and is secondarily liable for his negligence and failure to cause the entry of said default and default judgment and/or otherwise proceed in said action unless this court stays the proceedings and permits plaintiff to enter the default of defendants and/or otherwise proceed in this action. ’ ’ An affidavit filed on behalf of plaintiff alleged that he was at no time informed that his attorney had entered the military service and given up his practice and that “no one else, as far as affiant knows, was taking care of the cases,” and that he did not learn that his attorney had entered the military service until he was served with defendants’ motion to dismiss.