Taliaferro v. Locke

BRAY, P. J. Petitioner appeals from a judgment discharging the alternative writ of mandate and dismissing Ms petition for writ of mandate.

[779]Questions Presented

1. Is this appeal moot?

2. Did petitioner have an adequate remedy at law?

3. May a corporation appear in the small claims court by an attorney who is its assistant secretary?

Record

In the small claims court of the San Pablo Judicial District of Contra Costa County petitioner filed an action entitled “Taliaferro v. California-Western States Life Insurance Company.” On March 14, 1958, the case was called for hearing. Petitioner appeared in propria persona. California-Western States Life Insurance Company, a corporation, the real party in interest in this proceeding, was represented by Joseph S. Heston, an attorney who is an assistant secretary of said corporation. Petitioner alleged that said Heston stated to the small claims court that he had neither personal knowledge of the facts nor were the corporation’s books and records kept under his personal supervision. On the ground that section 117g, Code of Civil Procedure, provides, “No attorney at law or other person than the plaintiff and defendant shall take any part in the filing or the prosecution or defense of such litigation in the small claims court,” petitioner moved for the entry of California-Western States’ default. The motion was denied. Thereupon, petitioner sought this writ of mandate in the superior court. That court found that Heston-was an “employee, officer and assistant secretary of said California-Western States Life Insurance Company” and also “is an attorney at law employed in the Legal Department of” said corporation; that petitioner had not shown sufficient facts to constitute a cause of action for mandamus, discharged the alternative writ of mandate and dismissed the petition.

1. Is This Proceeding Moot f No.

Respondent California-Western States Life Insurance Company contends that immediately following the refusal of the judge of the small claims court to enter the corporation’s default, said Judge Locke disqualified himself and transferred the cause to the small claims court of the Concord Municipal Court. After determination of this proceeding in the superior court, the cause was retransferred to the San Pablo Small Claims Court, tried, and a judgment entered in favor of the corporation. Thereafter, petitioner appealed from the superior court judgment in this proceeding.