Brown v. Douglas Aircraft Co.

• Citation: 166 Cal.App.2d 232,333 P.2d 59
• Parties: Mae V. BROWN, Plaintiff and Respondent, v. DOUGLAS AIRCRAFT COMPANY, Inc., a corporation, et al., Defendants, Douglas Aircraft Company, Inc., a corporation, Appellant. Civ. 23299.
• Decision Date: 16 December 1958
• Court: California Court of Appeals Court of Appeals

Page 59

333 P.2d 59

166 Cal.App.2d 232

Mae V. BROWN, Plaintiff and Respondent, v. DOUGLAS AIRCRAFT COMPANY, Inc., a corporation, et al., Defendants, Douglas Aircraft Company, Inc., a corporation, Appellant.

Civ. 23299.

District Court of Appeal, Second District, Division 1, California.

Dec. 16, 1958.

Hearing Denied Feb. 11, 1959.

John A. Dundas, Louis Lieber, Jr., Frederick E. MacArthur, Santa Monica, for appellant.

Margolis, McTernan & Branton, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from an order granting a motion to set aside a judgment as to the above named corporate defendant.

An action for damages for libel was brought by the plaintiff against fifteen individual defendants and the Douglas Aircraft Company, the corporate defendant. Several of the individual defendants were served with summons and a copy of the complaint and thereupon such individual defendants demurred to, and moved to strike certain portions of the complaint. The demurrers and the motions to strike came on for hearing on April 11, 1956, and after some two hours of hearing, were continued for further hearing to April 19, 1956. Another of the individual defendants was served after April 11, 1956, and she filed a demurrer and motion to strike on April 19, 1956; a stipulation was then entered into between counsel, and the court ordered 'that the demurrer to the complaint and the motion to strike filed herein today by defendant Mary A. Church may be heard at this time together with the demurrer and motion to strike already set for this time.' After the matter of the demurrers and motions had been argued for another two hours on the 19th of April, the demurrers were sustained and the plaintiff was given forty-five days within which to amend. The motions to strike were ordered off calendar.

During the hearing on the 19th of April it was stated by counsel for the plaintiff, in effect, that he was about to serve Douglas Aircraft Company, the corporate defendant, who, with the individual defendants L. A. Peifer, Sonia Van Hooser Hazard and Winnie W. Barrett, had not as yet been served, and who, up to that time, had made no appearance in the action. Counsel for the appearing defendants stated that he was the attorney for Douglas Aircraft Company, and further stated in effect that he intended to demur and move to strike in its behalf as and when the summons and complaint were served. Apparently, in order to circumvent another lengthy hearing covering the identical matters which the court was then hearing, it was suggested and stipulated by opposing and appearing counsel in open court as follows:

'* * * default will not be taken against the corporate defendant on the original complaint herein, but the amended complaint may be served upon counsel for the defendants who have appeared and thereupon the corporate defendant and all defendants who have appeared shall answer or plead to the 1st amended complaint within 30 days following service upon their counsel.'

The stipulation was embodied in, and made a part of the court's order of that day wherein it ruled upon the demurrers, the motions to strike and the granting of time to the plaintiff within which to amend, and the granting of time to the corporate defendant within which to answer the amended complaint.

No amended pleading was filed within the forty-five days, namely on or before June 4, 1956. The corporate defendant waited until the 20th day of June, 1956, and then wrote a letter on that date to the plaintiff's attorneys stating, in effect, that the forty-five day period within which the amended complaint was to be filed had expired on June 4, 1956, and that counsel for the plaintiff was notified that he might have to and including Wednesday, June 27, 1956, in which to serve an amended complaint and that if not served on or prior to that date the company would take such steps as might be available to have the action terminated with prejudice to the plaintiff. On June 28, 1956, sixty-nine days after the demurrers were sustained and no amended complaint had been filed, the corporate defendant made an application to the court to dismiss the action with prejudice as to the plaintiff, and a judgment was so rendered and entered, and notice thereof was given to counsel for the plaintiff on June 29, 1956.

On October 17, 1957, one year and almost four months after entry of the judgment of dismissal, the plaintiff moved to set aside the judgment as to the corporate defendant, L. A. Peifer, Sonia Van Hooser Hazard and Winnie W. Barrett. The motion was made pursuant to the provisions of section 473, Code of Civil Procedure. The matter came on to be heard November 20, 1957, and was heard in part on that day and continued to December 11, 1957, when it was further heard, and the court then granted plaintiff's motion to set aside the judgment as to the corporate defendnat and the above individually named defendants. This appeal is by the corporate defendant from that order.

The appellant contends that under the circumstances of this case it made a general appearance, that the trial court had jurisdiction over the person of the corporate defendant, and the judgment of dismissal was final and binding as between the plaintiff and the corporate defendant, and further that the court thereafter had no power to set the judgment aside. We agree with the appellant.

This case is unusual and anomalous in that it is the plaintiff, not the defendant, who seeks to demonstrate that the defendant made no appearance in the case. Counsel for the appellant has stated in the brief that he has been unable to find a case parallel to the situation presented here, and our own independent research has not disclosed any such case.

Section 1014, Code of Civil Procedure, read, at the time with which we are concerned, as follows:

'A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. After appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him unless he is imprisoned for want of bail.'

A general appearance is not necessarily a formal, technical step or act. Witkin, California Procedure, Vol. I, § 66, p. 336. And, as further stated by Witkin, California Procedure, supra, at page 336:

'The doctrine of appearance has more than one purpose and becomes relevant in several branches of the law of procedure:

'(1) Its principal application is in the present topic of jurisdiction of the person. Appearance is considered herein as a form of consent to personal jurisdiction, dispensing with the requirement of service of process, and curing a defective service or other lack of notice.'

The corporate defendant, in this case, through its counsel knew of the pending action. The defendant obviously had a right to appear and defend in the action. In Wheatland v. Maloney, 110 Cal.App. 288, 294 P. 499, the plaintiff voluntarily dismissed a libel action before service or appearance of the defendants, and the defendants sought the statutory award of $100 attorneys' fees. In rejecting plaintiff's contention that they were not entitled, because of the lack of summons or appearance, the court said (110 Cal.App. at pages 290-291, 294 P. at page 500):

'When a complaint is filed, service of summons is not a necessary prerequisite to the right of the defendant to appear and defend such action. The summons duly served is simply a mandate requiring the appearance of said defendant in said action under penalty of having judgment entered for failure so to do. A defendant, who knows an action was pending against him, could proceed to retain counsel and begin the preparation of his defense to said pending action. If defendant has a right to appear in an attack upon an alleged cause of action after complaint filed, then he has a right to appear...