Kneeland v. Ethicon Suture Laboratories, 15363

• Decision Date: 29 September 1952
• Docket Number: No. 15363,15363
• Court: California Court of Appeals Court of Appeals
• Parties: KNEELAND v. ETHICON SUTURE LABORATORIES, Inc. et al.

Page 447

248 P.2d 447

113 Cal.App.2d 335

KNEELAND v. ETHICON SUTURE LABORATORIES, Inc. et al.

No. 15363.

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

Sept. 29, 1952.

David E. Adelson, Emeryville, for appellant.

Brown, Rosson & Berry, Oakland, for respondent.

BRAY, Justice.

Defendant Ethicon Suture Laboratories, Inc., ^* moved to dismiss plaintiff's appeal from an order quashing service of summons on said defendant.

Question Presented.

Was an order quashing service of summons on a foreign corporation for lack of personal jurisdiction in effect a final judgment and therefore appealable, prior to the amendment of section 963 of the Code of Civil Procedure?

Facts.

Defendant is a foreign corporation. Service of summons was attempted to be made on it by service on the Secretary of State pursuant to Corporations Code sections 6501 and 6502. Defendant moved to quash that service on the ground that defendant neither owned property nor conducted business in California. The order quashing was made September 13, 1951. Approximately nine days later, September 22, the amendment to section 963, Code of Civil Procedure, expressly allowing appeals from orders quashing service of summons, became effective. Prior to the amendment the section did not expressly provide for an appeal from an order quashing service. Defendant contends that the order is not appealable. Plaintiff contends primarily that even prior to the amendment the order was appealable as the order was in effect a final judgment.

Was the Order in Effect a Final Judgment?

The test of whether an order is a final judgment is stated in Lyon v. Goss, 19 Cal.2d 659, 670, 123 P.2d 11, 17: 'As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.' See also Sharon v. Hill, C.C., 26 F. 337, 389, where appears a discussion of the distinction between a judgment final as to subject matter for the purpose of res judicata and final as to action by the court for purposes of appeal.

In Howe v. Key System Transit Co., 198 Cal. 525, at page 531, 246 P. 39, at page 41, the court held an order striking cross-complaints appealable, saying: 'The theory upon which the decisions sustain the right of appeal from orders, where that right does not rest upon the express provisions of section 963, is that the order is in effect a final judgment against a party in a collateral proceeding growing out of the action--is so far independent of the suit itself as to be substantially a final decree for the purpose of an appeal, although there has been no final decree in the suit.'

The order in question here meets the test. While it is true that, in a sense the action is not final in that the defendant cannot have the action dismissed as against it until the statutory period for lack of prosecution has passed, it is final as to plaintiff in that it has been determined that defendant neither owned property nor did business in this state and hence cannot be served with summons. While the order is not final in the sense that defendant is now entitled to a dismissal of the case against it of record, it is final in the sence that for practical purposes the court's order, so far as plaintiff's right to proceed against defendant is concerned, is tantamount to a dismissal. This is not a case of error in the method of service which can be cured by a new service. It is a determination that, at least under existing conditions, defendant cannot be served. If this adjudication is wrong, as plaintiff contends, he has been denied unfairly an opportunity to have the action of the court reviewed, and in a very real sense the order is final as to him.

There are only two cases in California on the subject of the appealability of this order. In De Pier v. Maddox, 87 Cal.App.2d 460, 197 P.2d 87, an order was held appealable which quashed service of summons where the summons was served after the expiration of the period which under section 581a made the action subject to summary dismissal. It was held that the order terminated the proceedings and hence was appealable. In Thomas v. Lee, 90 Cal.App.2d 44, 202 P.2d 310, without any discussion of the subject other than a reference to Saroff v. Saroff, 66 Cal.App.2d 330, 152 P.2d 333, and Mertens v. Keene, 77 Cal.App. 786, 247 P. 543, an order quashing service of summons was held nonappealable. In both of the last cited cases the orders attempted to be appealed from were not orders quashing service but denying motions to quash. The Saroff case, in turn, was based...