Salsbery v. Ritter
| Citation | 306 P.2d 897,48 Cal.2d 1 |
| Court | California Supreme Court |
| Decision Date | 15 February 1957 |
| Parties | Winston N. SALSBERY and Helen S. Salsbery, Plaintiffs and Appellants, v. Tex RITTER et al., Defendants, Tex Ritter, Kenneth D. Holland, Stanley Sevilla, George A. Cutright, Jango Nishemine and Custom Craft Sheet Metal Products, a Corporation, Defendants and Respondents. Winston N. SALSBERY and Helen S. Salsbery, Plaintiffs and Appellants, v. Tex RITTER et al., Defendants, Eugene W. Biscailuz, Sheriff of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of Los Angeles Judicial District, and Municipal Court of the Los Angeles Judicial District, Defendants and Respondents. L. A. 24012, 24013. |
Edward H. Blixt, Los Angeles, for appellants.
Stanley Sevilla, Los Angeles, in pro. per., Harold W. Kennedy, County Counsel, William E. Lamoreaux, Deputy County Counsel, Los Angeles, and Kenneth D. Holland, Monrovia, for respondents.
On June 20, 1955, plaintiffs filed an amended complaint consisting of three counts in which they sought (1) a declaration of rights, (2) a determination of conflicting claims to realty, and (3) the nullification of a judgment and an execution sale of realty pursuant thereto.
On June 29, defendants Biscailuz, sheriff of Los Angeles County; the Municipal Court of the Los Angeles Judicial District; and Barbour, clerk of the Municipal Court, filed a demurrer attacking each count of the amended complaint as insufficient to state a cause of action. The court sustained the demurrer without leave to amend and entered judgment of dismissal for those defendants.
On September 19, after plaintiffs had filed a fourth amended complaint, defendants Ritter and Holland filed a demurrer, and a separate demurrer was filed by defendants Custom Craft, Cutright, Nishemine, and Sevilla. Each of these demurrers was upon the ground that the fourth amended complaint failed to state a cause of action. Both demurrers were sustained without leave to amend, and judgment of dismissal was also entered for those defendants. Plaintiffs appeal.
The ultimate issue on appeal is whether or not the facts alleged by plaintiffs show a right to relief. The fourth amended complaint is identical to the amended complaint insofar as defendants Barbour, Biscailuz, and the Municipal Court are concerned, and since the count for declaratory relief contains substantially all of the allegations found in the other counts, only that count will be discussed.
In substance these are the facts alleged: Defendant Custom Craft obtained a judgment against plaintiffs, Winston and Helen Salsbery, for $150.09 and costs. In the action an original summons was issued and returned. An alias summons was issued, and without the return of the first alias summons or an affidavit that it had been lost, a second alias summons was issued by the clerk. While the first alias summons was still outstanding, service of the second alias summons was made upon Helen, and judgment was entered by default. 1
Pursuant to the Custom Craft judgment a writ of execution issued and was levied upon the interests of plaintiffs in certain described realty. On May 4, 1954, the sheriff sold plaintiffs' interests to defendants Cutright, Nishemine, and Sevilla for $51.70 and issued and recorded a certificate of sale.
On June 14, 1954, defendants Ritter and Holland obtained a judgment against plaintiffs for $1,500, 2 which was recorded June 25, 1954.
On April 21, 1955, plaintiffs homesteaded their interest in the realty.
On April 28, 1955, defendants Ritter and Holland purported to redeem the property by paying to the sheriff $51.70 plus interest and costs. Ritter and Holland did not record a notice of redemption as required by section 703 of the Code of Civil Procedure.
On April 29, 1955, plaintiffs served upon the sheriff a notice of redemption, filed a copy of the notice with the county recorder, and deposited with the sheriff $61.80, which is still on deposit with him. The sheriff, Ritter and Holland have demanded that plaintiffs deposit with the sheriff an additional sum equal to the amount of the judgment in favor of Ritter and Holland, plus interest and costs. The sheriff refuses to issue a certificate of redemption to either plaintiffs or Ritter and Holland on the ground that he does not know who is legally entitled to the certificate.
On June 1, 1955, plaintiffs filed '* * * two petitions in bankruptcy * * * discharging all of the aforementioned judgments and indebtedness.'
In an action for declaratory relief, when the complaint shows the existence of an actual controversy among the parties, a general demurrer to the complaint should be overruled. The plaintiff is entitled to a declaration of his rights whether the declaration is favorable to him or not. Maguire v. Hibernia S. & L. Soc., 23 Cal.2d 719, 728 et seq., 146 P.2d 673, 151 A.L.R. 1062. Two exceptions to this general rule have been recognized, Bennett v. Hibernia Bank, 47 Cal.2d 540, 305 P.2d 20, but neither exception is involved in this case.
It is readily apparent that the complaint shows the existence of an actual controversy between plaintiffs and defendants Custom Craft, Cutright, Nishemine, and Sevilla with respect to the validity of the Custom Craft judgment and the subsequent execution sale. Likewise, a controversy is shown to exist between plaintiffs and defendants Ritter and Holland with respect to rights arising from the two purported redemptions. Although the remedy against the sheriff might appropriately be a petition for mandate, see Lawler v. Gleason, 130 Cal.App.2d 390, 279 P.2d 70, an action for declaratory relief is not inappropriate, since the controversy with respect to the redemptions revolves around the meaning of section 703 of the Code of Civil Procedure (see discussion infra). California Physicians' Service v. Garrison, 28 Cal.2d 790, 172 P.2d 4, 167 A.L.R. 306. Furthermore, as against a general demurrer the complaint may be construed as an application for mandate. Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981. It was error therefore to sustain the demurrers, and the judgments must be reversed. Maguire v. Hibernia S. & L. Soc., supra.
Our decision that controversies are shown to exist, however, does not resolve them, and we must therefore pass upon the questions of law that must be decided to reach a final determination of the case. Code Civ.Proc. § 53.
Plaintiffs contend that the clerk was without authority to issue a second alias summons without the return of the first alias summons or an affidavit that the first had been lost, that therefore the service upon Helen of the second alias summons did not subject her to the jurisdiction of the court, and that consequently the judgment against her and the subsequent execution sale are void.
This contention was considered by the Appellate Department of the Superior Court of Los Angeles County in reversing a judgment of nonsuit in an unlawful detainer action brought by Ritter against the Salsberys. Ritter v. Salsbery, 142 Cal.App.2d Supp. 847, 853, 298 P.2d 166, 170. The court held that there was no error in serving the second alias summons, saying, In our opinion section 408 alone does not provide a solution to the problem. Although it authorizes the issuance of several alias summonses, the question remains whether they may be issued concurrently or whether the preceding summons must be returned or lost before a new summons may issue.
Section 406 of the Code of Civil Procedure provides for the issuance of only one original summons for each county in which one of the defendants resides. Section 408 provides that an alias may issue only when the original has been returned or lost. Reading these sections together we conclude that there is to be outstanding in a single county only one summons at a time. This conclusion finds further support in the fact that at common law it was thought that the return of the proceeding writ was a prerequisite to the issuance of an alias or pluries writ. See Alderson on Judicial Writs and Process (1895), pp. 154-157.
The question then arises whether the irregularity in process of which plaintiffs complain is a sufficient reason to annul the subsequent judgment when the attack comes in an independent suit in equity more than a year after the entry of judgment and plaintiffs do not allege that they had a meritorious defense to the original action. The answer is that it is not. Even at common law failure to return the preceding writ did not render the alias or pluries writ void. Alderson, supra, at 155-156. In Williams' Administrator v. Welton's Administrator, 28 Ohio St. 451, under statutes very similar to our own, it was held that service of a second alias summons while the first was still outstanding gave the court jurisdiction over the person. The court said at page 471: 'The object of a summons is to give the party notice, and as each of these writs was in due form, one was as effectual, as a notice, as the other to the party served.' We agree with this statement and hold, therefore, that the Custom Craft judgment is not void.
Plaintiffs advance several arguments in support of their contention that Ritter and Holland never effectively redeemed. They urge that since the Ritter-Holland judgment was not obtained until after the sale of the property on execution, Ritter and Holland acquired no lien and were not eligible to redeem the property. See Code Civ.Proc. § 701. This contention is without merit. Clark v. Cuin, 46 Cal.2d 386, 295 P.2d 401; ...
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