Gion v. Stroud

SHOEMAKER, J. This is an appeal by the plaintiff and cross-defendant Thomas Gion from an order denying his motion to set aside a default judgment rendered against him.

Plaintiff brought this action to foreclose a mechanic’s lien. Defendants answered and cross-complained for money damages for breach of contract. Plaintiff was represented by attorney Robert Mezzetti. On August 14, 1959, a pretrial conference was held at which only defendants’ attorney appeared, Mezzetti having advised the court by letter incorporated in the file that although he was still attorney of record for plaintiff, he no longer represented him and would not be present. The case was set for trial on September 30, 1959, and notice thereof was duly served upon Mezzetti. On August 24, 1959, Mezzetti gave notice to his client and defendants that he would move the court to authorize his withdrawal, and on August 26, 1959, the court permitted his withdrawal. A copy of this order was served upon plaintiff on August 31, 1959. On said date Mezzetti also wrote to the plaintiff, informing him that the ease had been set for trial on September 30, 1959, and that unless plaintiff appeared or secured another attorney to appear for him, he would lose his case and defendants would take judgment against him on the cross-complaint. A copy of this letter was likewise filed with the court on September 1, 1959, and a copy was also forwarded to the attorney for defendants. On September 30, 1959, defendants appeared before the Superior Court of Alameda County. Plaintiff did not appear, either personally or by counsel. Thereupon, evidence was presented on behalf of the defendants and on October 1, 1959, judgment was entered that plaintiff take nothing by his complaint and that defendants recover judgment on their cross-complaint.

On May 26, 1960, plaintiff filed a motion to set aside the default judgment on the ground that no notice had been [279]given him by defendants to appoint another attorney or to appear in person, as required by Code of Civil Procedure, section 286. It is from the denial of this motion that plaintiff appeals.

The appellant’s contention on this appeal is the same that he urged on the trial court, namely, a failure on the part of respondents to comply with Code of Civil Procedure, section 286. That section provides:

“When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”