Allin v. International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators of U.S. and Canada

• Decision Date: 17 September 1952
• Citation: 247 P.2d 857,113 Cal.App.2d 135
• Court: California Court of Appeals Court of Appeals
• Parties: ALLIN et al. v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYES & MOVING PICTURE MACHINE OPERATORS OF UNITED STATE & CANADA et al. Civ. 19066.

Page 857

247 P.2d 857

113 Cal.App.2d 135

ALLIN et al. v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYES & MOVING PICTURE MACHINE OPERATORS OF UNITED STATE & CANADA et al.

Civ. 19066.

District Court of Appeal, Second District, Division 3, California.

Sept. 17, 1952.

Hearing Denied Nov. 13, 1952.

Kenny & Morris, Eleanor V. Jackson, Los Angeles, for appellants.

Bodkin, Breslin & Luddy, Orville W. McCarroll, Michael G. Luddy, Los Angeles, for respondents.

SHINN, Presiding Justice.

Plaintiffs are former members of the International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators of the United States and Canada, and Local 683 thereof. They were expelled from the Unions and brought this action seeking mandamus to compel their restoration and for damages and loss of earnings due to their alleged wrongful expulsion. Defendants are The International Alliance, Local No. 683, certain individuals, officers and agents of the Unions, and numerous defendants sued under fictitious names. The Unions and the officers and agents who were served with process answered. Plaintiffs gave notice of a motion to set the cause for trial and demanded a jury. At the time of trial defendants objected to trial by jury, their objection was sustained and the cause was tried to the court, resulting in findings and judgment in favor of defendants. Plaintiffs appeal, contending the ruling was erroneous.

The briefs contain learned discussions of the law with respect to the right of trial by jury. Plaintiffs say that their action is in mandamus, that mandamus was triable by a jury under the English common law of 1850, and that the common law as it existed in 1850 is the rule of decision in this State. The argument of plaintiffs on this point is vigorously opposed by the defendants. We have concluded, however, that the question is one which does not require decision in this action for the reason that the point was not reserved for review on appeal by an exception to the rulings of the court. Both sides quote from and rely upon the decision of this court in Grossblatt v. Wright, 108 Cal.App.2d 475, at page 480, 239 P.2d 19, at page 23, in which it was said: 'The purpose of an exception is not ritualistic; it is real. It 'is only a formal type of objection'. It does not have to be in any particular form. It is sufficient if it points out clearly the error complained of. The test of its sufficiency is whether it fairly directs the attention of the court to the claimed error. It is sufficient if it apprises the court in some way that the party does not acquiesce in the ruling or action of the court.' Manifestly, this calls for some affirmative declaration or action after the ruling has been made. The question here is whether this test has been met by the plaintiffs. We believe it has not been met. Defendants say: 'The record in the instant case establishes beyond cavil that nothing was done by appellants to indicate to the trial court that they were dissatisfied with, or that they did not acquiesce in, or that they intended to make its ruling denying them a jury trial the basis for appellate review. And, as appears from such record, appellants did not say or do anything which gave the trial court an opportunity to reconsider the ruling involved. Consequently there is no room for the application of the 'conduct equivalent to an exception' rule in the instant case and the denial of a jury trial cannot be reviewed by this Court.' This position seems to be well taken.

At the time of trial, in reply to the objection of defendants, plaintiffs took the position that they were entitled to a jury as a matter of right, stating: 'It would only be should we be denied a jury as a right that I might then make a motion for an advisory jury.' The question was argued at length as to what issues might or might not be submitted to a jury. After an adverse ruling by the court counsel for plaintiffs stated: 'Now, your Honor, at this time we ask that your Honor impanel an advisory jury and we move the Court to that effect.' Whereupon the court stated: 'The ruling in connection with the request for an advisory jury is as follows: that the request for an advisory jury upon all issues is denied and that if ...