Pacific Engine & Machine Works v. Superior Court

SCHOTTKY, J. Petitioner above named filed in this court a petition for a writ of mandate to compel the Superior Court of Del Norte County to proceed with the trial of an action commenced by petitioner in said court. We issued an alternative writ and a return thereto was filed by John C. Rogers and Ruth Y. Rogers on behalf of themselves as the real parties in interest and of the respondent superior court.

The facts which appear from the petition and the return, and which are not in substantial dispute, are as follows:

Petitioner commenced an action in the Superior Court of Del Norte County on December 10, 1953, against John C. Rogers, Ruth Y. Rogers and one Joe Gentry (sued as Doe defendant), to recover damages alleged to have resulted from a fire in Crescent City caused by the negligence of defendants.

Defendants Rogers are citizens and residents of the State of Oregon, and defendant Gentry is a citizen and resident of the State of California. Personal service was made on defendant Gentry and he appeared in the action. Certain real property alleged to belong to defendants Rogers was attached but no service of summons was made on said defendants in California, a copy of the complaint and summons being delivered to them in the State of Oregon. Thereafter defendants Rogers appeared specially and moved to have the action transferred to the United States District Court for the Northern District of California on the grounds that they were citizens of the State of Oregon and that defendant Gentry had been fraudulently joined as a party defendant in order to [741]prevent removal to the United States District Court, and said action was removed to said United States District Court. On August 11, 1954, plaintiff and petitioner commenced an action in the District Court of the United States for the District of Oregon against defendants Rogers only, based upon the same cause of action as the action theretofore filed in the respondent court against defendants Rogers and Gentry, and defendants Rogers were served in said action. On August 12, 1954, the United States District Court for the Northern District of California determined that the joinder of defendant Joe Gentry was not fraudulent and remanded said action to the respondent superior court. Petitioner then filed notice of motion to enter the default of defendants Rogers in respondent court, but before October 8,1954, the time set for the hearing of said motion, said defendants Rogers appeared in said action by filing an answer. On October 11, 1954, petitioner moved the United States District Court in Oregon for leave to dismiss the action filed in the United States District Court, which motion was opposed by defendants Rogers and denied by the court. On October 8, 1954, the respondent superior court set said action for trial commencing June 6, 1955, and thereafter defendants Rogers filed notice of motion to stay proceedings in the superior court or to dismiss. Thereafter petitioner moved the United States District Court for the District of Oregon to enter an order abating all further proceedings in the Oregon action pending final determination of the action pending in respondent court, and said United States District Court of Oregon, on February 21, 1955, ordered that said Oregon action and all proceedings therein be abated pending final determination of the action pending in the respondent court. On February 24, 1955, the judge of respondent court filed a memorandum of opinion stating that the action pending in respondent court should be abated until the final determination of the action pending in the United States District Court for the District of Oregon, and thereafter, although advised that the United States District Court of Oregon had abated the action pending there, caused to be entered an order abating the action pending in the respondent court until final disposition of the action filed in the United States District Court.