Miller v. F. M. W. Drilling Co.

• Citation: 140 Cal.App.2d 728,295 P.2d 412
• Court: California Court of Appeals
• Decision Date: 13 April 1956
• Parties: Aubrey R. MILLER, Plaintiff and Appellant, v. F. M. W. DRILLING CO., a copartnership, Frank Frost, James McKay, and Marion J. Weller, Partners, associated in business under the common name and style of F. M. W. Drilling Co., Carl C. Weller, an individual, First Doe, Second Doe, Third Doe, and Black & White Company, a corporation, Defendants and Respondents. Civ. 5305.

Page 412

295 P.2d 412

140 Cal.App.2d 728

Aubrey R. MILLER, Plaintiff and Appellant, v. F. M. W. DRILLING CO., a copartnership, Frank Frost, James McKay, and Marion J. Weller, Partners, associated in business under the common name and style of F. M. W. Drilling Co., Carl C. Weller, an individual, First Doe, Second Doe, Third Doe, and Black & White Company, a corporation, Defendants and Respondents.

Civ. 5305.

District Court of Appeal, Fourth District, California.

April 13, 1956.

Donald R. Franson, Fresno, for appellant.

A. W. Carlson, Fresno, for respondents.

BARNARD, Presiding Justice.

This is an appeal from an order granting a motion to vacate and set aside a default judgment as against the defendants F. M. W. Drilling Co., a partnership, and Frank Frost and James McKay as partners, and granting a motion to recall an execution.

The complaint in the action was filed on December 28, 1954. It alleged that Frank Frost, James McKay and Marion J. Weller were partners doing business as F. M. W. Drilling Co.; that Carl C. Weller was the manager of this partnership; that on Junc 1, 1954, plaintiff was employed on behalf of the partnership by Carl C. Weller to construct a certain oil drilling derrick; that the partnership and each of the partners thus promised to pay the plaintiff $500 per month as wages; that he worked 4 1/2 months; and that a balance of $1,650 as such wages was unpaid and due to him. It was further alleged that the defendants hired from the plaintiff a 300 Amp. arc welder which was used for 1,200 hours for their benefit; that $3 per hour is a reasonable rental for this use, and $3,600 became due to the plaintiff as such rental; that defendants hired from the plaintiff a truck, and $300 is a reasonable sum for the hire of said truck; that plaintiff also furnished to the defendants verious materials used in the construction of said rig; that the defendants promised to pay what said materials were reasonably worth at the time they were furnished; and that said materials were then reasonably worth $1,700. The prayer was for $7,250, with interest at 6% from October 16, 1954.

Summons was served on Marion J. Weller in Fresno County on December 29, 1954. On December 30, 1954, counsel for plaintiff wrote to Marion J. Weller stating that he was mailing the complaint and summons to Frost and McKay (at what address is not stated), and asking her to contact them and advise them that she had been served and that the partnership was being held responsible, and stating that this mailing, 'together with notice from you, a copartner', will be sufficient to put Frost and McKay on notice of the action. The default of the F. M. W. Drilling Co., a copartnership, and Marion J. Weller was entered by the clerk on January 14, 1955. Also on January 14, the clerk entered a default judgment adjudging and decreeing that the plaintiff recover from the F. M. W. Drilling Co., a copartnership, and Frank Frost, James McKay and Marion J. Weller as copartners therein, the sum of $7,358.75. This was the amount sued for plus interest at 6% to date of judgment.

On January 21, 1955, the F. M. W. Drilling Co., Frank Frost and J. C. McKay filed notice of a motion to relieve them from default and to set aside and vacate the judgment as to them, on the ground of inadvertence, surprise or excusable neglect. A notice of motion to quash and recall the execution which had been issued was filed on January 24. On January 28 an answer was filed denying the material allegations of the complaint, and particularly those relating to the amount of services and materials furnished and the reasonable value of the same. Affidavits were filed in support of the motions alleging, among other things, that neither Frank Frost nor James McKay had been personally served with summons; that they were residents of the State of Nevada and absent from the county of Fresno; that they had no notice that this action had been filed until after the default judgment was...