Stout v. Bakker

GRIFFIN, P. J. Plaintiffs-appellants, husband and wife, first filed this action in Los Angeles County on July 29, 1960, alleging a claimed cause of action against defendants T. A. Glenn, Glenn Construction, Inc., Don Oakes, Don Oakes Lumber Company, a bank, and several John Does. They were served with process. On a motion for change of venue by them, the action was transferred to San Bernardino County on February 6, 1961. An amended complaint was there filed on April 19, 1961, naming additional defendants, the employees of defendant Oakes, including defendants and respondents Percy Bakker and Major D. Fronaberger, who were apparently sued in the original complaint as Does One and Two.

An alias summons was issued in San Bernardino County on April 19, 1961, and the original complaint was served on these two defendants, with the Los Angeles caption, on April 28, 1961, in San Bernardino County where they resided. The complaint alleged that plaintiffs were purchasing a home; that defendants T. A. Glenn and Don Oakes and their employees broke into the house while plaintiffs were out of town, took possession and kept the house and all plaintiffs’ clothing, personal effects, furniture and machines and tools used in their sign-painting business, all pursuant to a conspiracy.

Defendants’ answer denied generally these allegations and alleged that any entry made by them was done under color of right due to default in plaintiffs’ contract of sale payments. After Bakker and Fronaberger were served with summons and complaint, each of them talked with defendant Oakes, their employer, who had already appeared by answer in the action, and Oakes told them that he would have his attorney, William 0. Lewis, take care of the matter for them.

On May 22, 1961, a request by plaintiffs for default of these two respondents was filed and default was entered, and on August 9, 1961, default judgment was entered in the sum of $15,723 against each respondent.

[80]On the motion to set aside the default and default judgment, affidavits were used in support of the motions. Fronaberger stated therein that, after being served and reading the summons and complaint, he realized that the case was one wherein his friend and codefendant Don Oakes was accused of entering the premises of the plaintiffs and removing furniture and other property; that, having been present when some of the acts complained of occurred, he immediately called his codefendant Don Oakes and advised him that he had been served with summons and complaint and asked Oakes what he should do about it; that in reply to this inquiry Oakes stated to him over the telephone that: