Epley v. Califro

• Decision Date: 06 March 1957
• Citation: 307 P.2d 641
• Court: California Court of Appeals Court of Appeals
• Parties: Garlan EPLEY, an Individual doing business under the fictitious firm name and style of Retailers Credit Association, Plaintiff, Cross-Defendant and Respondent, v. Amelia CALIFRO, etc., et al., Defendants and Cross-Complainants, Lena Califro, Defendant, Cross-Complainant and Appellant.* Civ. 8959.

Page 641

307 P.2d 641

Garlan EPLEY, an Individual doing business under the fictitious firm name and style of Retailers Credit Association, Plaintiff, Cross-Defendant and Respondent, v. Amelia CALIFRO, etc., et al., Defendants and Cross-Complainants Lena Califro, Defendant, Cross-Complainant and Appellant.*

Civ. 8959.

District Court of Appeal, Third District, California.

March 6, 1957.

Rehearing Denied April 1, 1957.

Hearing Granted May 1, 1957.

Barbagelata, Zief & Carmazzi and Henry J. Broderick, San Francisco, for appellants.

Heenan & Arnoldy, Marysville, for respondent.

PEEK, Justice.

This is an appeal by defendant and cross-complainant Lena Califro from that portion of an order of the trial court granting the motion of the plaintiff to vacate a previous minute order of the court dismissing the action as against herself. The defendant Mareck has not appealed.

From the pertinent portions of the record on appeal (which consists solely of the clerk's transcript) it appears that by his complaint, filed on March 22, 1951, plaintiff as assignor of the California Engineering & Surveying Service, sought to recover from the defendants on an open book account. On December 14, 1951, an answer and cross-complaint was filed by the defendants wherein Thomas T. Califro appeared in propria persona and as attorney for the other two defendants, Lena Califro and Andy Mareck. On September 30, 1952, an answer to the cross-complaint was filed. The cause did not come on for trial until July 21, 1955, or more than three years after service of summons on the defendants. The minutes of the court show that the only appearance was made by counsel for Amelia Califro, administratrix of the estate of Thomas; that 'the court ordered said action dismissed as to Defendants Andy Mareck and Lena Califro * * * according to Section 581a of the Code of Civil Procedure'; that the cause was then heard on its merits; that various documents were introduced in evidence and witnesses were sworn on behalf of plaintiff and the remaining defendant; and that the cause was then ordered to be submitted upon the filing of briefs by the respective parties.

Thereafter on July 29, 1955, plaintiff filed his motion to vacate the prior order of submission and dismissing the action as to the defendants Andy Mareck and Lena Califro, and in support thereof an affidavit of Mr. Arnoldy, one of plaintiff's counsel, was filed. In said affidavit it was averred that subsequent to the submission of the cause, the affiant further examined the file in said action and discovered that Thomas T. Califro had filed an answer and cross-complaint on behalf of himself and the other defendants and prayed that the court vacate its order dismissing the defendants Mareck and Lena Califro from said action. Neither Lena Califro nor Andy Mareck were served with notice of plaintiff's motion. On October 14, 1955, the court made its order wherein it noted that the previous order dismissing the action as to Lena Califro and Andy Mareck had been made 'inadvertently'; that notice of plaintiff's motion had not been served upon the defendants Lena Califro or Andy Mareck or their attorneys; that the only appearance was by counsel for Amelia Califro as administratrix of the estate of Thomas Califro; that plaintiff's motion had been submitted upon counsel's affidavit and the record and proceedings taken in said action, from which the court concluded that said order should be entered setting aside the previous order. It is from this order that Lena Califro now appeals.

Section 581a of the Code of Civil Procedure provides in part that:

'All action, heretofore or hereafter commenced, must be dismissed by the court in which the same may be pending, on its own motion, or on the motion of any party interested therein, if summons has been served, and no answer has been filed, if plaintiff fails, or has failed, to have judgment entered within three years after service of summons, except where the parties have filed a stipulation in...