LACEY v. BERTONE

Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.

LACEY v. BERTONE.

Civ. 13608.

Decided: July 16, 1948

Phil F. Garvey and Jas. A. Himmel, both of San Francisco, for appellant. Allen Spivock, of San Francisco, for respondent.

Two appeals are presented, one from an order granting a temporary injunction and the second from an order denying appellant's motion to dissolve said injunction.

Appellant as plaintiff brought this action for specific performance of a contract to sell an apartment house and for declaratory relief. Defendant cross-complained seeking a determination that plaintiff's rights under the contract of sale were terminated, damages and an accounting of rents collected by plaintiff.

After the trial and submission of the action but before judgment defendant and cross-complainant filed an application for an injunction pendente lite to enjoin plaintiff and cross-defendant from collecting further rents from the apartment except on condition that they be deposited in a joint account of the parties and from interfering with cross-complainant's access to the premises. An order to show cause and temporary restraining order were issued, the return day in the order to show cause being June 2, 1947. Service of the order to show cause was made on appellant Lacey on May 29, 1947. On the return day no appearance was made by or on behalf of appellant and the temporary injunction was granted as prayed.

Several attacks are made on this order: 1. That the order to show cause was not served five days before the hearing as required by Code Civ.Proc., sec. 1005; 2. That the order to show cause was not served on appellant's attorney but only on appellant; 3. That the order to show cause was defective in specifying the hour of hearing as ‘10 o'clock’, without designating whether a. m. or p. m.

Since the first ground is sound we need not consider the other two. An order to show cause is a notice of motion. Difani v. Riverside County Oil Co., 201 Cal. 210, 256 P. 210; McAuliffe v. Coughlin, 105 Cal. 268, 38 P. 730. This being so sec. 1005, Code Civ.Proc. is applicable and a service of less than five days, in the absence of an order shortening time of service, is insufficient.

Respondent argues that we should presume in support of the order appealed from that the court did make an order shortening time; but under rule 52, Rules on Appeal, we can no longer presume that an error apparent on the face of the record was cured by something not shown by the record. Alkus v. Johnson-Pacific Co., 80 Cal.App.2d 1, 181 P.2d 72; Palpar, Inc., v. Thayer, 82 Cal.App.2d 578, 186 P.2d 748.

This defect in the time of service would necessitate a reversal but for what followed. On June 13, 1947 appellant served a notice of motion on respondent and pursuant to such notice on June 18, 1947 moved the court to dissolve this temporary injunction. This motion to dissolve was denied and it is from the order of denial that the second appeal is taken.

The notice of motion to dissolve stated as grounds upon which it would be made in addition to insufficient notice ‘2. That there is not sufficient ground for the injunction. 3. That the extent of the injunction is too great.’ Appellant thus undertook to relitigate the merits of the issuance of the injunction. Having done that he cannot now complain of the original lack of statutory notice. The applicable principle is well stated in Thomas v. San Diego College Co., 111 Cal. 358, 365, 43 P. 965, 967: ‘Whether the court erred in granting the order without notice need not be considered, as plaintiffs were heard upon the motion to recall the order, or to stay its execution; and, if their motion was properly denied, they were not prejudiced by the first order.’

Similarly in Goble v. Appellate Dept. of Superior Court, 130 Cal.App. 737, 739, 20 P.2d 345, 346, we read that ‘* * * while petitioner had no notice preceding the order staying remittitur, he had his day in court under the motion to vacate it. It is for this reason that he was not prejudiced by the lack of notice. The only purpose of the notice * * * would have been to furnish him an opportunity to be heard. That opportunity he has had.’

This principle is no more than a specific application of the well recognized rule that a general, as distinguished from a special, appearance will cure an antecedent lack of jurisdiction of the person. Raps v. Raps, 20 Cal.2d 382, 125 P.2d 826.

The orders appealed from are affirmed.

DOOLING, Justice.

GOODELL, Acting P. J., and GRIFFIN, J. pro tem, concur.