Erickson v. Pacific Greyhound Lines, 3215-O'C.
Decision Date | 19 September 1944 |
Docket Number | No. 3215-O'C.,3215-O'C. |
Citation | 56 F. Supp. 938 |
Court | U.S. District Court — Southern District of California |
Parties | ERICKSON et al. v. PACIFIC GREYHOUND LINES et al. |
William J. F. Brown, of Los Angeles, Cal., for plaintiffs.
Bryce P. Gibbs, of Los Angeles, Cal., for defendant.
The defendant, Pacific Greyhound Lines, a corporation, moved the court for judgment of dismissal against the plaintiffs and each of them, for the reason that the requisite diversity of citizenship between the plaintiffs and all parties defendant does not appear.
This action was filed on October 8, 1943, by Violet Erickson, a widow, and as guardian ad litem of her six minor children.
The complaint alleges:
"That Pacific Greyhound Lines is and at all times mentioned herein has been a corporation, duly organized and incorporated under and by virtue of the laws of the State of California, with its principal place of business in the City of San Francisco, State of California, and operates public carriers in the State of California and into and in other and adjacent states."
And:
The injuries which resulted in the death of Clarence Erickson are then set forth, and the prayer for damages.
The Pacific Greyhound Lines, a corporation, answered for itself alone. The answer admitted that the Pacific Greyhound Lines was incorporated under the laws of the State of California with its principal place of business in the City of San Francisco, State of California, and admitted the employment of Ben Edward Johnson as a driver of one of its buses. Negligence was denied. The time and place of the accident was admitted. The answer also alleged unavoidable accident.
On December 2, 1943, the respective attorneys for the parties entered into a stipulation of facts. Only the stipulations pertaining to the question before the court will be mentioned. The stipulation of facts, after setting forth the names of plaintiff and each of her children with their ages, provided:
Also that defendant Ben Edward Johnson was acting within the scope of his duties and that "Ben E. Johnson's residence on May 22, 1943, was Marshall Court, Indio, Riverside County, State of California."
On October 15, 1943, the attorney for the plaintiffs filed his affidavit in support of oral motion to permit the constable of Indio Township, Riverside County, instead of the United States marshal, to serve the defendant, Ben Edward Johnson. In this affidavit plaintiffs' attorney said:
"That the defendant, Ben Edward Johnson resides outside of the County of Los Angeles, to wit, in Marshall Court, Indio Township, in the County of Riverside, California."
The court, on the same day, granted the motion, and permitted plaintiff to serve copy of the summons and complaint in the action upon the defendant, Ben Edward Johnson, as requested. No service has been made by plaintiffs on Ben Edward Johnson, although more than eleven months have passed since the order of the court.
The action has been set for pretrial hearing, but for one reason or another has been continued. The first pretrial hearing was set for November 17, 1943, and postponed to December 6, 1943, and the action was set for trial on May 9, 1944, at 10:00 o'clock A. M. and vacated at plaintiffs' request. Pretrial hearing was continued from December 6, 1943 for one week. On December 13, 1943, pretrial hearing was held.
On September 11, 1944, defendant made...
To continue reading
Request your trial