Muller v. Muller

Decision Date23 May 1956
Citation297 P.2d 789,141 Cal.App.2d 722
CourtCalifornia Court of Appeals Court of Appeals
PartiesLelah MULLER, Plaintiff and Respondent, v. William MULLER, Defendant and Appellant (three cases). Civ. 16709, 16755, 16756.

William Muller, in pro. per.

Charles Reagh, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff, Lelah Muller, former wife of defendant, William Muller, brought an action in San Mateo County to quiet title to certain property. According to the affidavit of service, personal service in that action was had on defendant in San Francisco on November 17, 1952. Growing out of this action the San Mateo Superior Court made three separate orders adverse to defendant. From these orders defendant, in propria persona, appeals. The three appeals have been consolidated. 1 Civil No. 16,755 is an appeal from an order made by Judge Draper on October 13, 1954, denying defendant's motion to set aside a default judgment in the quiet title action. 1 Civil No. 16,709 is from an order made by Judge Cotton on October 25, 1954, denying defendant's 'motion to set aside submission sua sponte and reopen cause for the reception of evidence.' 1 Civil No. 16,756 is an appeal from an order made by Judge Dematteis on December 29, 1954, denying defendant's motion 'to set aside default and to vacate default judgment coram non judice by way of collateral attack.' Most of defendant's lengthy arguments on these appeals are highly technical and are dilatory in nature. All of them are without merit.

The original quiet title action was filed in May of 1952 in San Mateo County. In December of 1952 appellant applied to the trial court and secured an extension to January 17, 1953, 'within which to move' in that action. On January 16, 1953, defendant moved to quash the service of summons in the quiet title action mainly on the ground that at the time of service the papers were thrown at defendant by the process server while defendant was in attendance in the Municipal Court of San Francisco on an entirely different civil matter, and was, therefore, so it is claimed, exempt from service.

On March 23, 1953, respondent's attorney and appellant appeared before Judge Draper to argue about some demurrers in three actions appellant had brought against respondent involving the title to the property involved in the quiet title action. Appellant was then moving to have service of these demurrers set aside on the basis that such service had been made by registered and not by regular mail. At this hearing respondent's attorney, in open court and in the presence of appellant, complained that the county clerk had refused to enter appellant's default in the quiet title action. Appellant told the court that he had no copy of the complaint. 1 Judge Draper directed respondent's attorney to send appellant, by mail, a copy of the complaint and to wait 10 days before attempting to have the default entered. At the same time, unknown to appellant, Judge Draper entered a minute order that appellant was granted 10 days from the mailing date to file an answer or cross-complaint. Respondent's attorney avers that on March 23, 1953, he mailed a copy of the complaint in the quiet title action properly stamped and addressed to appellant, and that this was done in the presence of his office associate. The office associate corroborates respondent's attorney except that in his affidavit he refers to the mailed document as a 'complaint in a divorce case.'

On April 24, 1953, the motion to quash the service of summons in the quiet title action came before Judge Draper, and was denied. Immediately thereafter, in the presence of appellant, respondent's attorney requested the court to enter appellant's default. The judge told the attorney, in the presence of appellant, that he had the court's permission to request the county clerk to enter the default. Respondent's attorney immediately proceeded to the clerk's office, followed by appellant, and appellant's default was entered while appellant was standing nearby.

On September 9, 1953, respondent's attorney sent a letter, properly stamped and addressed, to appellant informing appellant that the default had been entered, that the time to move to vacate the default would expire on October 24, 1953, and that if appellant would secure an attorney he, respondent's attorney, would recommend to his client that she consent to vacating the default. No answer was received.

On May 13, 1954, the quiet title action came on for hearing before Judge Dematteis on respondent's motion for judgment after default. At this hearing a deed to the property involved, signed by appellant, whose signature was identified by respondent, was introduced into evidence, and the respondent testified as to the circumstances under which it was signed. The deed had not been acknowledged, which was the reason for the quiet title action. On May 18, 1954, the court entered its judgment quieting title to the property involved, after finding the pertinent facts as set forth above. On September 21, 1954, which was four months after this judgment was entered, and a year and five months after appellant's default had been entered, appellant moved to set aside the default judgment on the grounds that service of summons was defective; that respondent had not mailed him a copy of the complaint; that the judgment was secured by extrinsic fraud, in that respondent's pleading and evidence were false, and that pertinent facts, known to respondent, had not been revealed to the court. Appellant claimed by affidavit that he had never received a copy of the complaint, and that he did not learn of the default until just after respondent took possession of the premises. Annexed to the motion is a verified answer and cross-complaint setting forth his version of the facts under which the deed was executed which, if true, would have been a defense to the quiet title action. Respondent's affidavit set forth the facts favorable to her.

The hearing of appellant's motion to vacate the default came on for hearing before Judge Draper on October 6, 1954. Appellant was permitted to file a counter-affidavit in which he challenged all of the basic facts already set forth, denying that he had been served, heard counsel ask for a default, heard the court tell respondent's counsel to have the clerk enter it, followed respondent's counsel to the clerk's office, and denied ever receiving the letter above mentioned from respondent's counsel. On October 13, 1954, Judge Draper denied the motion to set aside the default by a memorandum decision finding that service had been properly made, and that appellant was in default. A formal order to this effect was entered October 14, 1954. From this order appellant has appealed--1 Civil No. 16,755.

On October 18, 1954, appellant moved to set aside the submission of his previous motion to vacate, and to reopen the cause for further evidence, claiming that submission of the motion was against his will, that Judge Draper refused to permit him to present his case, and that the judgment was secured by extrinsic fraud. This motion came before Judge Cotton on October 25, 1954. At that time appellant attempted to pre-emptorily challenge Judge Cotton under section 170.5 of the Code of Civil Procedure. The challenge was denied. Judge Cotton then summarily denied the motion, and, after a heated exchange, ordered the bailiff to escort appellant from the courtroom. An appeal was taken from this order--1 Civil No. 16,709.

On November 26, 1954, the appellant filed a motion to set aside the default judgment. This motion was, of course, filed more than the six month's period prescribed by section 473 of the Code of Civil Procedure. This motion urged many grounds in its support, most of which were a rehash of points already set forth. This motion was heard by Judge Dematteis and, after extensive argument, was denied by him on December 29, 1954. An appeal was taken from that order of denial--1 Civil No. 16,756.

In support of his various appeals appellant has filed briefs totalling over 200 pages, raising some 40 points of what are claimed to be points of law. Most of them involve factual matters that have been passed upon by the lower courts on conflicting affidavits. These need not be considered. The rulings of the trial courts on these issues are conclusive.

Appeal 1 Civil No. 16,755.

The only real legal point raised by appellant on this appeal is that he was immune from service because when served he was in fact in attendance in the San Francisco Municipal Court as a suitor in other actions.

There can be no doubt that it is the rule in California that a non-resident of the state present in this state as a suitor or as a witness in an action pending here, is immune from service of process while present in this state for such purposes. Hammons v. Superior Court, 63 Cal.App. 700, 219 P. 1037; Gerard v. Superior Court, 91 Cal.App.2d 549, 205 P.2d 109; Franklin v. Superior Court, 98 Cal.App.2d 292, 220 P.2d 8. This is a rule of general application which is based upon public policy independent of statute.

In the present case the main action was filed in San Mateo County, which was the county of the residence of the parties, and service was had on him in that action while he was attending the Municipal Court in San Francisco as a suitor. While the general rule above set forth as to non-residents of the state, also applies between counties where the county where the service is had is seeking to assert jurisdiction over a non-resident, see cases collected 42 Am.Jur. 127, § 146, the generally accepted rule is that where a person is served in a county where he is appearing as a suitor or as a witness in an action pending in his own county of residence, the reason for the rule exempting him from service does not exist, and the rule does not apply. In other...

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