Lombardi v. Citizens National Trust & Savings Bank of Los Angeles
| Decision Date | 22 November 1955 |
| Citation | 137 Cal.App.2d 206,289 P.2d 823 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Jesse A. LOMBARDI, Plaintiff and Appellant, v. CITIZENS NATIONAL TRUST & SAVINGS BANK OF LOS ANGELES, a national banking association, as Executor of the Will and Estate of Minnie B. Hutchin, Deceased, Defendant and Respondent. Civ. 21132. . Division 2, California |
Littlejohn & Callister and Roy Littlejohn, Los Angeles, for appellant.
Allan L. Leonard and Iverson & Hogoboom, Los Angeles, for respondent.
This is an appeal by plaintiff from an order and judgment of nonsuit.
Plaintiff brought this action against the executor of the estate of Minnie B. Hutchin, deceased, to recover on a rejected claim. He alleged that on or about April 8, 1938, Minnie B. Hutchin executed and delivered to him an instrument in writing wherein she acknowledged that for a valuable consideration she was indebted to him in the amount of $25,000 and agreed to pay such sum to plaintiff and authorized and directed her executor to pay the same to plaintiff. There was attached to the complaint a copy of a letter purportedly signed by the decedent containing the alleged promise and direction to pay.
Defendant denied the allegations of the complaint and particularly that decedent had executed or delivered to plaintiff the letter in question. Defendant also charged that the signature on the document had been obtained upon a blank piece of paper by means of fraud and concealment and without the knowledge of the decedent, or by means of fraud and fraudulent representations on the part of plaintiff.
At the trial, plaintiff, appearing in propria persona, took the witness stand in his own behalf. Counsel for defendant advised the court he would insist upon the examination proceeding by question and answer because he intended to invoke the protection of section 1880, subdivision 3, 1 Code of Civil Procedure, as to any matter occurring before the decedent's death. Thereupon the following transpired:
'Mr. Lombardi: I offer this letter from Minnie B. Hutchin which is the basis of my claim.
'Mr. Leonard: I object to the tender on the ground that there is no proof that that is the signature of Minnie B. Hutchin and we object to Mr. Lombardi's testimony in that regard and move to strike.
'Mr. Lombardi: I can prove the signature by other documents.
'The Court: You will have to present evidence.
'Mr. Leonard: Object to it on the ground that no proper foundation has been laid and it is hearsay.
'The Court: Sustained.
'Mr. Lombardi: I don't know what to do.
'Mr. Lombardi: I don't know how to lay my foundation that it is her signature.
'Mr. Lombardi: That is all I had to offer.
'Mr. Leonard: At this time, your Honor, we move for a nonsuit on the ground of failure of proof.'
The court granted the motion and judgment was accordingly entered.
The gravamen of plaintiff's appeal is that the trial judge failed to lend him any assistance in the presentation of his evidence and as a consequence he was unable to get his evidence before the court. We find no justification for a reversal.
A litigant has a right to act as his own attorney, Gray v. Justice's Court, 18 Cal.App.2d 420, 63 P.2d 1160, 'but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.' Knapp v. Fleming, 127 Colo. 414, 258 P.2d 489; Monastero v. Los Angeles Transit Co., 131 Cal.App.2d 156, 160-161, 280 P.2d 187. The Supreme Court of Arizona, in Ackerman v. Southern Arizona Bank & Trust Co., 39 Ariz. 484, 7 P.2d 944, stated the principle in this language: 'A layman with resources who insists upon exercising the privilege of representing himself must expect and receive the same treatment as if represented by an attorney--no different, no better, no worse.' To that same effect is Biggs v. Spader, 411 Ill. 42, 103 N.E.2d 104. The fact that a layman elects to represent himself 'certainly does not excuse him from a failure of proof' of his cause of action. Pete v. Henderson, 124 Cal.App.2d 487, 491, 269 P.2d 78, 80.
Applying these principles to the proceeding at hand, it is clear plaintiff received the decision to which he was entitled, namely, a nonsuit, since he did not establish any element of his case. But, he argues, the judge knew he was a layman unlearned in legal procedure and the technical rules of evidence, therefore he should have helped him out. That would have been an unjust reward for ignorance as the Supreme Court of Colorado pointed out in the Knapp case, supra. Plaintiff was not entitled 'to capitalize' on his own ignorance. Monastero v. Los Angeles Transit Co., supra.
It is the duty of a trial judge to see that a cause is not defeated by 'mere inadvertence', Hellings v. Wright, 29 Cal.App. 649, 156 P. 365, or by 'want of attention' Bare v. Parker, 51 Cal.App. 106, 196 P. 280, 281, and 'to call attention to omissions in the evidence or defects in the pleadings' which are likely to result in a decision other than on the merits, Farrar v. Farrar, 41 Cal.App. 452, 182 P. 989, 991, and 'within reasonable limits' by proper questions 'to clearly bring out the facts so that the important functions of his office may be fairly and justly performed.' In re Estate of Dupont, 60 Cal.App.2d 276, 140 P.2d 866, 873. He is not, however, required to act as counsel for a litigant in the presentation of his evidence. That is virtually what plaintiff insists the trial judge should have done for him. Claims against an estate are...
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...to employ counsel would be to unjustly reward his ignorance. This thought was expressed in Lombardi v. Citizens National Trust & Savings Bank of Los Angeles, 137 Cal.App.2d 206, 289 P.2d 823 (1955), where the court "A litigant has a right to act as his own attorney, Gray v. Justice's Court,......
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