Hadges v. Iverson

WOOD, J. Appeal by plaintiffs from an order granting defendant’s motion to dismiss, and from an order dismissing, the action for want of prosecution.

On December 10, 1942, plaintiffs sued the defendant, an attorney at law, for damages for allegedly failing to represent them skillfully, as their attorney, in the trial of a municipal court action wherein these plaintiffs had been sued upon an account for groceries and merchandise. Summons and complaint in this action were served on defendant on December 21, 1942, and at said time the defendant was on active duty in the United States Navy. Defendant did not appear in the action, except to file two affidavits and a notice of motion as hereinafter mentioned.

About October 18, 1945, the defendant called one of plaintiffs ’ attorneys by telephone, and told him that defendant was about to be placed on inactive duty in the Navy, and requested that the action be dismissed or that he be permitted to take the depositions of plaintiffs. The attorney replied that he would contact the plaintiffs about the matter. On October 31,1945, plaintiffs’ attorneys wrote a letter to Thomas Badges, one of the plaintiffs, in which he stated: “Mr. Iverson [defendant] is back from the service and phoned me the other day. Be wants to do something about the suit against him. I am still attorney of record in that. Probably I should be substituted out. If I am not I shall have to accept service on your behalf. Please let me hear from you.” That letter was addressed to the plaintiffs’ post office box address,—Post Office Box 25, Station “M,” Los Angeles 32, California. On November 7, 1945, the defendant, not having heard from said attorney, called him again by telephone and the attorney told the defendant that “he had been unable to contact his clients [plaintiffs]. ” In that conversation defendant told the attorney that if the case was not dismissed he would like to take the depositions of the plaintiffs before filing an answer. The attorney replied that if plaintiffs would not agree to a dismissal of the action the attorney could accept service of a notice to dismiss or of a notice to take depositions, but he could not supply the residence address of plaintiffs. After plaintiffs had received said letter of October 31st from their attorney, they [438]prepared, and sent to the attorney on November 9th, a document entitled “Substitution of Attorneys,” which provided that plaintiffs were substituted to act for themselves in the place of their attorneys of record. On November 10, 1945, the attorneys signed that document and returned it to plaintiffs, who then filed it in the clerk’s office and notified the defendant that the substitution had been made. On November 14, 1945, defendant received a letter from one of plaintiffs’ former attorneys, which letter stated in substance that he had received a “Substitution of Attorneys” from the plaintiffs, that plaintiffs would be acting for themselves, and that they gave no residence address, but the address on the substitution was “Thomas Badges P. 0. Box 25, Station ‘M,’ Los Angeles 32, Calif. ’ ’ On November 15, 1945, defendant filed in this action an affidavit entitled “Affidavit in Support of Order Requiring Plaintiffs to Pile and Address Where They Can Be Served With Process. ’ ’ In that affidavit he stated that the action was filed on December 10,1942, and that he (defendant) “desires to have this action disposed of and, if necessary, to appear in the action, to take the depositions of the plaintiffs before pleading to the complaint”; and that defendant “is informed and believes . . . that the plaintiffs are intentionally secreting themselves to avoid service of process upon them.” On said date the court made and filed an order entitled ‘‘ Order That Plaintiffs Pile an Address Where They Can Be Served With Process.” It was ordered therein: that the plaintiffs serve upon defendant and file in said court a notice of their residence addresses or other addresses where personal service of process can be made upon them; defendant shall not be required to file a pleading in said action until 20 days after the serving and filing of such notice; said order and the defendant's affidavit shall not be considered as an appearance by defendant, nor shall they prejudice the rights of defendant; and a copy of said order and affidavit be mailed to plaintiffs, addressed to “Thomas Badges, P. 0. Box 25, Station ‘M,’ Los Angeles 32, Calif.” On November 16, 1947, the defendant mailed a copy of the order and a copy of the affidavit to Thomas Badges as directed in said order. Thomas Badges received said copies of those documents. None of the plaintiffs served or filed his residence address or any address as required by said order.