84 Cal. 528 | Cal. | 1890
This is an action for seduction, commenced in San Francisco December 15, 1885, in which the plaintiff, a minor sixteen years of age, sues by her guardian, Bridget Drysdale, who is her mother.
The summons was served on the defendant March 12,
On the morning of April 17th, plaintiff’s attorney, by his cleric, notified defendant’s attorneys and the notary, in Oakland, that, as he would be engaged in other business in one of the courts in San Francisco, he had not notified plaintiff to appear, and that she would not appear to give her deposition on that day, and asked for another postponement of one week. To this request defendant’s attorneys refuse 1 to consent, and the notary denied any further postponement; but as plaintiff did not appear, her deposition was not and could not have been taken on that day. In the mean time the cause had been transferred to Alameda County for trial.
On July 14th, the defendant gave notice that on July 27th he would move the court to strike out the complaint of the plaintiff, on the ground that she had disobeyed the subpoena issued by the notary, as above stated.
September 6th the motion was heard on a report of the notary, which he made pursuant to an order of the court, and upon affidavits filed by the respective parties, showing the facts substantially as above stated. Thereupon the court ordered that the plaintiff’s complaint be stricken out, and dismissed the action.
This appeal is from the judgment dismissing the action, and comes here upon the judgment roll, including a bill of exceptions. The appellant asks a review of the order striking out her complaint, claiming it to be an intermediate non-appealable order, which involves the merits and necessarily affects the judgment, in the sense of section 956 of the Code of Civil Procedure.
1. The respondent’s counsel contend, as I understand their point, that this appeal, as presented, necessarily involves a review of the evidence upon which the motion was granted, and that this cannot be done, because the appeal was not taken within sixty days after the rendition of the judgment.
It is true that the appeal was not taken within sixty days after the rendition of the judgment. It is also true that the bill of exceptions contains no specification of any particulars of the insufficiency of the evidence to justify the order, but counsel express no objection on this ground. It appears, however, that an exception was duty taken to the order striking out the complaint.
Section 648 of the Code of Civil Procedure provides that “ when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.”
Section 939 provides that an appeal from a final judgment may be taken within one year after the entry thereof, but adds that “ an exception to the decision or
Section 956 provides that “ upon an appeal from a judgment, the court may review the verdict or decision, and any intermediate order or decision excepted to, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken.”
In Coveny v. Hale, 49 Cal. 555, it was decided that “the decision referred to in section 648 is the statement of facts found and conclusions of law therefrom mentioned in section 633 of the same code,” and I see no reason to doubt that the words “verdict or decision” were used in the same sense in sections 939 and 956 as in section 648.
As used in section 956, the phrase “the verdict or decision” evidently means something different from what is intended by the phrase “ any intermediate order or decision,” in the same section; for certainly the latter phrase, as there used, does not mean the written findings of fact and law required by sections 632 and 633 to be filed with the clerk as a result of a.trial on the merits. From these considerations it follows that the word “decision,” as used in section 939, means the written findings of fact required by sections 632 and 633, exclusive of the intermediate orders and decisions which may be reviewed upon appeal from a final judgment, and as to -which no written findings are required. This conclusion, I think, accords with the practice and general understanding of the profession in this state, and is further strengthened by the consideration that no specification of insufficiency of evidence is required or practiced on appeals from appealable orders, although such orders are as often founded upon evidence dehors the 'pleadings as are non-appealable orders. I see no reason why such
2. Although the complaint or answer of a party may be stricken out as a penalty for disobedience to a subpoena (Code Civ. Proc., sec. 1991; Keiskar v. Ayres, 48 Cal. 84), yet such disobedience must be proved to have been willful or intentional.
The affidavits and the report of the notary, on which the court made the order striking out the complaint, do not show that plaintiff intentionally disobeyed the subpoena; but, taken together, — and they are perfectly consistent with each other,— they tend to show the contrary. The subpoena commanded the plaintiff to appear and testify on April 5th. She did not then appear, because her attorney had instructed her that she need not appear until he notified her to do so, as he intended to have the matter postponed until some future day; and accordingly her attorney appeared at the time appointed and requested a postponement until April 10th, to which defendant’s attorneys consented. On April 10th,defendant’s attorneys consented to another postponement, until April 17th. On the day last appointed, plaintiff’s attornejq by his clerk, notified defendant’s attorneys that he would be engaged in court on that day, and could not attend to taking the deposition, and that he had not notified the
To justify the severe penalty imposed by the court, the disobedience must have been such as to constitute a contempt of the authority of the notary, and must have been proved by the same degree of evidence as would have been required to prove the plaintiff guilty of such con-' tempt; yet there is no evidence tending to prove disobedience to the subpoena, except the fact that she did not appear before the notary on the 5th of April, which was excused by the consent of defendant’s counsel to a postponement, since it does not appear that her absence was the cause of the postponement, nor that she would not have appeared on April 5th if the postponement had not been consented to. It will hardly be contended that the notary would have been justified in attaching and' punishing her for contempt after the postponement by agreement of counsel.
It does not appear that she was advised by her counsel to disobey the subpoena, and it is not intended to decide that the advice of her counsel could have shielded her from the penalties of intentional disobedience. The question is, Does it appear that she intentionally disobeyed the subpoena, either by advice of her attorney or otherwise? And I think this question should be answered negatively.
I think the judgment dismissing the action should be reversed, and that the trial court should be directed to restore plaintiff’s complaint to its files, and to proceed in the action.
Belcher, C. C., and Foote, C., concurred.
Fox, J., dissented.
