Wilson v. Eddy

• Decision Date: 15 December 1969
• Citation: 2 Cal.App.3d 613,82 Cal.Rptr. 826
• Court: California Court of Appeals Court of Appeals
• Parties: Carey Anthony WILSON and Diane McCord Wilson, Plaintiffs and Appellants, v. James EDDY and Audrey Eddy, Defendants and Respondents. Civ. 34136.

Page 826

82 Cal.Rptr. 826

2 Cal.App.3d 613

Carey Anthony WILSON and Diane McCord Wilson, Plaintiffs and Appellants, v. James EDDY and Audrey Eddy, Defendants and Respondents.

Civ. 34136.

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

Dec. 15, 1969.

Fierstein & Dolan, Los Angeles, for respondents.

LILLIE, Associate Justice.

Plaintiffs appeal from an order quashing service of summons and complaint upon defendants who are conceded to have been residents of New York at the time in question and were never personally served. The attempted service was made upon their attorney, Mr. Antin, pursuant to a provision in an agreement, executed by plaintiffs but not by defendants, in which the latter 'hereby irrevocably appoints MICHAEL ANTIN, ESC., as agent to accept service of process upon EDDY (collective) at any time hereafter in connection with any matter arising out of or in connection' therewith. Plaintiffs filed suit when defendants allegedly breached other material portions of the above agreement by the terms of which, generally stated, defendants undertook to sell to plaintiffs their interest in certain residential property.

The motion was heard upon various declarations as to the factual issue of Antin's authority to accept service, and upon points and authorities as to the legal effect of such authority if the court found that it was given; also considered was Antin's deposition taken on plaintiffs' behalf.

From the foregoing emerge the following background facts of the within litigation. In the latter part of 1967 plaintiff Carey Wilson, who had long been interested in purchasing certain property, had a number of discussions with Mr. Antin after he had been advised by a real estate broker that Antin was representing defendants with respect to such property. Thereafter negotiations were carried on through Antin for defendants and plaintiffs' attorney, Leonard Maizlish; these negotiations resulted in the drafting of a proposed agreement by Antin, sent to Maizlish on January 12, 1968, whereunder defendants offered to sell their interests in the property to plaintiffs. A few days later Maizlish sent Antin a revised draft of the agreement; Antin made two changes in the draft, sending Maizlish (on January 19) a copy of the new draft and advising Maizlish, according to the latter, that he had also sent a copy to New York that day for approval.

On January 25 Antin received a telegram from New York, concluding with the words 'James and Audrey Eddy and approved by Samuel Fredman in behalf of Audrey Eddy'--it appears that the Eddys were in the process of getting a New York divorce and each had separate counsel. The approval referred to the 'Agreement mailed with your letter of January 19th' but it was conditioned upon certain changes in the draft. Antin advised Maizlish of the telegram's receipt and, on January 26, sent the latter four copies of the agreement as finally revised. This was signed by plaintiffs and constitutes the agreement sued upon. In addition to the paragraph appointing Antin as agent to accept service, quoted at the beginning of this opinion, there is another paragraph material here: '14. This Agreement has been approved telephonically by EDDY and includes the two revisions provided in the telegraphic offer dated January 25, 1968, a copy of which is attached hereto. This Agreement shall be determined and deemed to be valid and binding upon signature thereof by WILSON on or before January 27, 1968.' As mentioned earlier, there is nothing to indicate, nor is it claimed, that he finally revised agreement was ever signed by defendants. Although Maizlish and Antin were apparently in communication with each other during the first week of February, 1968, further negotiations between the two attorneys were concluded when Antin told Maizlish (on February 8) that defendants had sold their interests in the property to another party. Almost immediately thereafter the present action was commenced.

According to plaintiffs, the two issues for determination here involve questions of law. First, can a private individual validly appoint another private individual as agent to accept service of process? It is provided by section 411, Code of Civil Procedure, that in the case of corporations, foreign and domestic, unincorporated associations, minors, wards, public agencies and others, the summons must be served by delivering a copy to an officer or agent of the defendant as the case may be; the statute further provides: '8. In all other cases to the defendant personally.' Service of summons in conformance with the mode prescribed by the above provision 8 being deemed jurisdictional, absent such service no jurisdiction is acquired by the court. (Sternbeck v. Buck, 148 Cal.App.2d 829, 834, 307 P.2d 970.) Except for one case plaintiffs take a somewhat negative approach to the problem asserting that nothing in the statutes or decisions can be found Prohibiting appointment of an agent for the present purpose--this, despite the rule that the filing of the motion to quash placed upon them the burden of proving facts requisite to an effective service. (Coulston v. Cooper, 245 Cal.App.2d 866, 868, 54 Cal.Rptr. 302.) The single decision specifically relating to the present point is Solot v. Linch, 46 Cal.2d 99, 292 P.2d 887, which declares (among other things) that 'While 'personal service,' generally speaking, means the actual delivery of the process to the defendant in person (citation), service of process upon one whom a nonresident has, either expressly or by implication of law, appointed as his resident agent or lawful attorney upon whom legal process may be served may be effective as personal service upon the nonresident. (Citation.)' (P. 104, 292 P.2d p. 890.)

The statement of the law above quoted must be viewed in light of the issue there presented for determination, to wit, the effect of then section 404, Vehicle Code, upon the facts of the case. The statute provided that the Director of Motor Vehicles shall be the nonresident motorist's 'lawful attorney upon whom may be served all lawful processes' and that service so prescribed 'shall be of the same legal force and validity as if served on said nonresident personally in this State.' Such language, is was held, indicated the intent of the Legislature to create a service of process tantamount for all purposes to personal service; it was accordingly concluded that section 473a, Code of Civil Procedure (allowing a defendant not personally served to answer to the merits of the action within one year after judgment) was inapplicable. It should be noted that under then section 404 the Director of Motor Vehicles was required to send a copy of the documents served upon him by registered mail to the defendant. No such duty is imposed upon Antin if, Arguendo, it should be determined that he was a lawful agent upon whom...