Holtkamp v. States Marine Corp.
| Decision Date | 14 November 1958 |
| Citation | 165 Cal.App.2d 131,331 P.2d 679 |
| Parties | Eugene W. HOLTKAMP, Plaintiff and Appellant, v. STATES MARINE CORP., a corporation, et al., Defendants and Respondents. Civ. 17779. |
| Court | California Court of Appeals Court of Appeals |
Delaney, Fishgold & Freitas, San Francisco, for appellant.
John F. Porter, Lillick, Geary, Wheat, Adams & Charles, San Francisco, for respondents.
Plaintiff appeals from the order granting the motion of Sprague Steamship Company to quash service of summons, and also from an order denying plaintiff's motion to enter the default of Sprague Steamship Company. At the oral argument plaintiff properly conceded that the order denying the motion to enter the default is not appealable, and conceded that the appeal from that order should be dismissed.
Plaintiff brought an action under the Jones Act, 46 U.S.C.A. § 688, for personal injuries against States Marine Corp. and Black Co., a corporation sued under a fictitious name. The complaint alleged that defendants owned, operated, managed, navigated, maintained and controlled the S.S. Wideawake and that plaintiff was injured on this vessel while engaged in his duties as a wiper as the result of defendants' negligence. A second cause of action alleged that the vessel was unseaworthy. The complaint was filed on October 21, 1955.
Defendant States Marine Corp. answered this complaint, admitting that it was a corporation doing business in San Francisco, and denying the other allegations of the complaint. This defendant also pleaded contributory negligence of and assumption of risk by the plaintiff as affirmative defenses.
Sprague Steamship Company was served on July 11, 1956, as Black Co. by the delivery of the summons and complaint to States Marine Corp. On September 14, 1956, Sprague moved to 'Dismiss and Quash Purported Service of Summons' on it. The motion was predicated on the grounds that Sprague was a foreign corporation not doing business in California; that States Marine Corp. was not a proper agent to accept service on behalf of Sprague; and that Sprague has not conducted any intrastate business in California.
Affidavits were filed in support of this motion. These aver, on information and belief, that Sprague is a foreign corporation with its principal place of business outside California; that it has not filed certified copies of its articles with the Secretary of State of California, nor has it designated a person upon whom service could be made, nor has it consented to service in California, nor has it authorized any person or corporation in California to accept service of process on its behalf; that Sprague owned the S.S. Wideawake at the time of plaintiff's alleged injury and that States Marine Corp. was a time charterer of the vessel at that time; that before the date States Marine Corp. was served on behalf of Sprague, Sprague had sold the S.S. Wideawake and now owns no vessels calling in California ports; that neither at the time of service nor at any other time has there been an agency relationship between Sprague and States Marine Corp.; that Sprague does not now and did not at the time of service do any business in California; and that when Sprague owned the S.S. Wideawake it made only rare calls to any California port.
Affidavits in opposition to the motion to quash were filed by plaintiff. In one affidavit it is admitted that service on Sprague had been attempted by service on States Marine Corp.; that the law firm purportedly representing Sprague had presented and secured a stipulation granting counsel until August 21, 1956, to 'Plead to, except to, demur to, answer to or move to the Complaint'; that on August 30, 1956, these same attorneys wrote to plaintiff's attorney asking for additional time to plead, and that plaintiff's attorney granted additional time to these attorneys to answer the complaint. Another affidavit avers that plaintiff and the entire crew of the S.S. Wideawake signed the shipping articles for the voyage on which plaintiff was injured in the State of California; that stores and supplies for the vessel were purchased in California; that the vessel went into dry dock in California while plaintiff was a member of the crew; that an attorney for States Marine Corp., John F. Porter by name, represented to plaintiff's attorneys that States Marine Corp. was the local agent for Sprague, and that it was for this reason that service was made on States Marine Corp.; that had this representation not been made, plaintiff would have served the Secretary of State.
At the hearing Porter testified that his firm had been retained by Sprague to represent them on the motion to quash.
On this record the trial court granted the motion to quash.
Plaintiff attacks the order granting the motion on several different grounds. It is first contended that procuring the extensions of time constituted a general appearance pearance on the part of Sprague. If Sprague made a general appearance by securing such extensions it would, of course, constitute a waiver of defective service. Prior to 1955 there was considerable confusion over the legal effect of securing extensions by stipulation or order. See, for example, California Pine Box & Lumber Co. v. Superior Court, 13 Cal.App. 65, 108 P. 882, and Davenport v. Superior Court, 183 Cal. 506, 191 P. 911. This confusion was set at rest by the addition of section 416.1 to the Code of Civil Procedure in 1955. By that section it is provided that any defendant may, within a specified period, move to quash the service of summons upon the ground of lack of jurisdiction of the court over him, and that 'Neither an application to the court by any defendant * * * for an extension of time within which to plead, nor the granting of such extension nor extering into a stipulation of the parties for such extension, shall constitute a general appearance by said defendant.'
Plaintiff seeks to evade the application of this section by pointing out that it requires that the notice of motion specify a date for hearing the motion which must not exceed ten days from the date of the filing of the notice of motion. The notice of motion here involved does not designate a specific hearing date, simply stating that the motion will be heard 'at the appropriate time designated by the Clerk of this Court.' The notice of motion was filed September 14, 1956. On October 3, 1956, after affidavits in opposition to the motion had been filed on September 26, 1956, Sprague filed a 'Notice of Hearing,' notifying plaintiff that at a specified hour on October 9, 1956, in a specified court, it would move to quash the service of summons. Thus although the September 14, 1956, notice of motion was defective for failing to specify the date of hearing, such defect was cured by the date specified in the 'Notice of Hearing.' The first notice may be disregarded and the second considered as the proper notice of motion. So far as the record shows, such motion was timely filed. There is no evidence in the record to show that plaintiff objected in the trial court to the timeliness of the motion.
Plaintiff also argues that he gave Sprague a stipulation extending its time to plead, and contends that the acceptance of such stipulation by Sprague estopped it from later moving to quash service of summons. Such a motion is not pleading according to plaintiff. Cases are cited to the effect that stipulations are contracts supported by consideration. These cases state sound law. They would be applicable if, in return for the stipulation, Sprague had promised not to move to quash summons. But no such promise appears in the record. It cannot be implied from the stipulation for the extension of time to plead, because such implication would be directly contrary to that provision of section 416.1 of the Code of Civil Procedure which expressly states that a promise not to move to quash cannot be implied from the bare fact of obtaining a stipulation to plead.
It is next contended that Sprague made a general appearance because it coupled with its motion to quash a motion to dismiss. It is contended that a motion to dismiss necessarily asks for relief on the merits inconsistent with the claim of lack of jurisdiction over the person. The point is without merit. The same contention was unsuccessfully made in Hernandez v. National Dairy Products, 126 Cal.App.2d 490, 272 P.2d 799. The court held that while a motion to dismiss might involve an issue relating to the jurisdiction over the subject matter of the litigation, and so might possibly involve a general appearance, that such was not inevitable. The court held that the character of the relief asked and not its label determines the nature of the motion, and that matters stated in the affidavits could not expand the grounds set forth in the notice of motion. In that case, the notice of motion was aimed at challenging jurisdiction over the person, and, therefore, the appearance was held to be special and not general, although a motion to dismiss had been made.
That is precisely this case. The notice of motion here involved obviously is aimed at challenging jurisdiction over the person. Plaintiff contends that one ground of the motion was that Sprague does not conduct any intrastate business in California and that the accident did not arise out of any such business. That is not a challenge of subject matter jurisdiction, but is entirely consistent with a challenge to jurisdiction over the person. Section 6504 of the Corporations Code provides that: 'A foreign corporation which has transacted intrastate business in this State and has thereafter withdrawn from...
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