213 P. 495 | Cal. | 1923
The plaintiff brought this action for a declaration of his rights under certain contracts of employment entered into with the defendants. A general and special demurrer to the complaint was interposed and was sustained without leave to amend. Judgment was thereupon entered dismissing the action and for defendants' costs. Hence this appeal, which squarely presents for our consideration the constitutionality of sections
It is alleged that plaintiff is an attorney at law. He entered into an agreement in writing with the defendants, by which he was employed to represent defendants in the prosecution of certain patent litigation pending in the United States courts, which actions appear to have been consolidated. He was successful in the prosecution of said causes, and secured for the defendants findings and a decree upholding their rights and "that the defendants were entitled to an injunction and accounting and for the profits made by their opponents in said cause of action and for their costs." The injunction was issued and, according to the allegations of the complaint, the accounting is now being had before the master in chancery appointed by the federal court, and has not yet been completed. Plaintiff alleges the defendants were to receive as profits and damages for the infringement upon their patent rights approximately one million dollars. As compensation for his services in prosecuting and conducting the litigation for defendants, plaintiff, so he avers, was to receive certain nominal fees and "a one-third (1/3) contingent interest in any and all recoveries, damages and profits which might be or were made or moneys which might be received by defendants in said cases." Relying upon that agreement, plaintiff performed the service agreed upon, and prosecuted and defended the actions to judgment, as already stated.
It is further alleged that subsequent to the commencement by plaintiff of the services for defendants, and prior to the final hearings in said causes, plaintiff proposed to the defendants that they purchase outright plaintiff's contingent one-third interest in the consolidated causes. Defendants refused to do this, but submitted a counter-proposition depending upon certain conditions, all of which are set out in the complaint. Plaintiff did not accept this arrangement, *482 but secured the decree for the defendants under the prior agreement for a one-third interest.
Coming to that portion of the complaint which purports to make this a "case of actual controversy," plaintiff alleges that the defendants have admitted in writing the agreement to employ him on the basis of a one-third contingent interest in any recoveries made by them, but now contend that one of the stipulations contained in their counter-proposition for the employment of the plaintiff, to wit, to pay plaintiff the sum of three thousand five hundred dollars in full for his services, superseded the original agreement, and is the actual contract under which the employment was rendered by plaintiff. On this basis defendants have offered to pay plaintiff in full, but plaintiff has refused to settle upon those terms, and no part of the recoveries, profits, and proceeds accruing to the defendants under the patent litigation has been paid or received by him.
The sections, supra, providing for declaratory relief were added to the Code of Civil Procedure by the legislature at its session in 1921. This is the first time their consideration and construction has engaged the attention of this court.
[1] It is, first, strongly urged by the respondents that the sections of the code referred to impose nonjudicial duties upon the courts, thereby rendering the act unconstitutional. [2] It is further contended that a mere declaration of a right and duty, and the determination of any question of construction or validity arising under written instruments and contracts, do not have the effect of a judgment, and are but the invoking of the authority of the court in the performance of an idle act, where no dispute or controversy exists. The objection is also made that there is nothing in the act giving the declaration of the court the effect of a lis pendens. None of these objections are sound. The subject of what proceedings are considered judicial in this state was so thoroughly considered and determined in a case involving the construction of "an Act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records" (Stats. 1906 [Ex. Sess.], p. 78) that it were idle to do more than to refer to Title etc. Restoration Co. v. Kerrigan,
The contention that judicial power should not be exercised except in settling actual disputes and controversies was also disposed of in a case involving "an Act for the certification of land titles and the simplification of the transfers of real estate," commonly known as the "Torrens Law" (Stats. 1897, p. 138). (Robinson v. Kerrigan,
While, as previously stated, the particular statute in question has not before engaged the attention of this court, its subject matter has been considered by the highest court in two other jurisdictions. The Michigan legislature passed an act to authorize courts of record to make binding declarations of rights. (Act 150 of the Public Acts of 1919.) That act appears to be more comprehensive than the California statute, but does not provide that its provisions may be invoked only in cases of actual controversy, as is the case in this state. In a proceeding, not based on an actual controversy, the supreme court of Michigan declared that "while the advocates of this measure insist that the proceedings authorized by the act do not constitute a moot case, and while the proceedings may not square in all particulars with the technical definition of a moot case, they are such in every essential. . . . This act confers power not judicial and requires performance of acts nonjudicial in character." For these reasons it declared the act void in its entirety. (Anway v. Grand Rapids Ry. Co.,
[3] The objection that the act makes no provision for anything in the nature of a lis pendens does not warrant further consideration. The Code of Civil Procedure, section
[4] Coming to a consideration of the last contention of the respondents that the action of the court in sustaining the demurrer upon the ground of uncertainty, ambiguity, and unintelligibility was warranted by the pleadings, it suffices to say that it very rarely happens upon an initial attempt to state a cause of action that the court is justified in sustaining a demurrer upon those grounds, without leave to amend. Such action is ordinarily altogether too drastic upon a pleader's first attempt to present his cause. Furthermore, *485 in this instance, it does not appear to us that the points of the special demurrer are well taken.
The judgment of the lower court is reversed.
Lennon, J., Seawell, J., Myers, J., Kerrigan, J., Wilbur, C. J., and Lawlor, J., concurred.
