CARLON v. GRAY

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District Court of Appeal, Third District, California.

CARLON v. GRAY.*

Civ. 5305.

Decided: September 18, 1935

W. H. Hatfield, of Sacramento, for appellant. Rowan Hardin, of Sonora, for respondent.

Plaintiff in this action seeks to restrain the defendant, as constable of the Third township in and for Tuolumne county, Cal., from selling one Cadillac tow car and one Chevrolet truck under execution from the justice's court of Sacramento township, Sacramento, Cal.

It appears that on August 31, 1933, the Sacramento Board of Trade, a corporation, commenced an action in the justice's court of said Sacramento township against the plaintiff, which action was for an alleged demand of less than $300, and which action was within the jurisdiction of justice's courts of class B jurisdiction as provided by the provisions of section 112 of the Code of Civil Procedure of this state as amended by the statutes of 1933 (St. 1933, p. 1814, § 23); that the complaint so filed in said justice's court action was not verified; that the summons in said action was issued on August 31, 1933; a copy of said unverified complaint and the summons were served upon respondent plaintiff herein in Groveland township, or the Third township of the county of Tuolumne, which place was the then residence of the plaintiff herein; that there was not served with said summons an affidavit of the plaintiff, or any affidavit from which it could be determined which court was the proper trial court for the trial of the action; that on or about October 2, 1933, plaintiff herein filed an affidavit in the said justice's court of Sacramento township setting forth the facts of the service so made upon her, and requested the said justice's court to dismiss said action; that a copy of said affidavit and request was served upon the attorney representing the plaintiff in said justice's court action; that, after hearing, said justice's court on December 11, 1933, made its order denying the request to dismiss the said action and did thereafter enter judgment against respondent herein.

It also appears that on September 23, 1933, and before plaintiff's motion and affidavit to dismiss were served or filed, the plaintiff in said justice's court filed its first amended complaint, and, it is alleged, served a copy thereof upon respondent herein, which said service was made by mailing and proof of which was made by affidavit of mailing, in the usual manner.

However, it is claimed by respondent that she did not receive the said first amended complaint through the mail or otherwise.

Section 396a of the Code of Civil Procedure, as added in 1933 (St. 1933, p. 1841, § 8), provides as follows: “In all actions and proceedings within the subject matter jurisdiction of justices' courts of Class B, whether commenced in a justices' or municipal court, plaintiff must state facts in the complaint, verified by his oath, or in an affidavit of the plaintiff, from which it can be determined which court is, under the provisions of this title, the proper court for the trial of such action or proceeding. When such affidavit is filed, a copy thereof must be served with the summons. Unless such complaint or affidavit be filed, no further proceedings shall be had in the action or proceeding, except to dismiss the same, unless defendant consents in the manner hereinafter provided to the keeping of the action or proceeding in the court where commenced.”

It is conceded that the complaint in the justice's court was unverified and that no affidavit was filed and served with the summons upon respondent, and it is also conceded that she has not at any time consented to the prosecution of the action in said justice's court as provided in said section 396a.

It is also claimed by respondent that the first amended complaint failed to comply with the provisions of the Code of Civil Procedure in respect to the required statement as to the court which is the proper one for the trial of the action. However, in view of the conclusions we have reached, it is deemed unnecessary to express an opinion upon this particular phase of the matter or upon the construction generally, particularly as to dismissal, of said section 396a.

That an action of this kind is proper is definitely determined by the case of Isert v. Riecks, as Sheriff, etc., et al., 195 Cal. 569, 234 P. 371.

After trial of this action before the superior court of Tuolumne county, which court is herein designated as the trial court, the questions involved herein appear to have been fully presented. The pleadings and the affidavits were before the court, and it heard testimony to determine particularly the question as to whether the plaintiff actually received the first amended complaint herein referred to. After such trial and a consideration of the matter, the trial court reached the conclusion that respondent did not receive the first amended complaint and that there was no service thereof, and so found in its findings of fact.

It being apparent that with the failure of the plaintiff in the justice's court action to comply with the requirements of said section 396a in respect to the allegations and verifications of the complaint or of the service of the required affidavit with the summons that there could be no further proceedings had in the action, except to dismiss the same, without the consent of the respondent to further proceedings, and unless prior to the submission of the request of respondent herein in said justice's court to dismiss the said action there was a service of such further notice as to constitute the required due process, the finding of the trial court that respondent had not received the amended complaint, and that there had been no service upon her thereof, is conclusive upon this court, and we are satisfied that the proceedings in said justice's court were subject to dismissal; that no enforceable right was secured against respondent in said justice's court action; that the attempted sale of the said property of respondent under execution was without right; and that she was and is entitled to have the same restrained.

It therefore follows that the judgment of the trial court should be, and the same is hereby, affirmed.

MONCUR, Justice pro tem, delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.