281 P. 1031 | Cal. Ct. App. | 1929
On April 8, 1927, one Thomas J. Casey filed an action in the respondent court praying judgment against D.C. Gulick, defendant there and appellant here, in the sum of $150.
It appears that appellant incurred an indebtedness in the township of Indio, in Riverside County, to Casey, and on March 30, 1927, in the same township and county, gave him his check in the sum of $150, made payable to Thos. J. Casey, dated at Los Angeles, California, and drawn on the Pacific National Bank, Los Angeles, California. The check was sent through the usual channels for collection and when it reached the Pacific National Bank payment had been stopped by appellant. While the return on the summons is not in the record, it appears elsewhere that the summons was served on appellant in Los Angeles. Defendant appeared by demurrer in words and figures as follows: "In the Justice's Court of Indio Township, County of Riverside, State of California. Thos J. Casey, plaintiff, vs. D.C. Gulick, defendant. No. ____. Demurrer. Now comes the defendant and demurs to the complaint in this action and for cause of demurrer alleges: That the Court has no jurisdiction of the person of the defendant because the defendant is a non-resident of the County of Riverside, and resides in the City of Los Angeles, County of Los Angeles, and there is a special contract in writing, to wit the alleged check sued on herein, drawn on the Pacific National Bank of Los Angeles, and payable there, and was not payable or to be performed in said Township of Indio. Dated this 21st day of April 1927. Howell W. Richardson. Thomas E. Parke." The demurrer came on regularly to be heard and was overruled, and appellant given ten days in which to file his answer.
Appellant filed his petition in the Superior Court of the County of Riverside, seeking a writ of prohibition against respondent, alleging his residence in Los Angeles and the service of summons upon him there. Attached to the petition were copies of the complaint, summons, without the return, *621 and the demurrer. An alternative writ of prohibition was issued, and thereafter, after a hearing, the writ of prohibition was denied by the trial court. The respondent has made no appearance in this court and the action is submitted on the transcript on appeal and the brief of appellant.
Section
"Actions, Where Must Be Commenced. Actions in justices' courts must be commenced, and, subject to the right to change the place of trial, as in this chapter provided, must be tried:
"5. When the defendant is a nonresident of the county — in any township or city wherein he may be found;
"7. When a person has contracted to perform an obligation at a particular place, and resides in another county, township, or city — in the township or city in which such obligation is to be performed, or in which he resides; and the township or city in which the obligation is incurred is deemed to be the township or city in which it is to be performed, unless there is a special contract in writing to the contrary.
"8. When the parties voluntarily appear and plead without summons — In any township or city in the State;
"9. In all other cases — in the township or city in which the defendant resides."
Section 848 of the Code of Civil Procedure provides in part as follows:
"Service of Summons Outside of County. The summons cannot be served out of the county wherein the action is brought, except in the following cases:
"2. When the action is brought against a party who has contracted in writing to perform an obligation at a particular place, and resides in a different county, in which case the summons may be served in the county where he resides."
At the hearing of the demurrer in the respondent court apparently the only files before the court were the complaint and demurrer. As far as the record here goes, the summons had not been returned. There was nothing offered by appellant in support of his demurrer to show that the defendant was a resident of Los Angeles County *622
or that summons was served on him there. As far as the record showed at that time, summons might have been served on defendant in the township of Indio. The complaint stated a cause of action and there was nothing upon which the respondent court could base an order sustaining the demurrer unless the check set forth in the complaint was a special contract which brought the case under the provisions of the last sentence of subdivision seven of section
[1] The case before us presents no feature of a special or unusual contract. In fact, the transaction is very usual and ordinary. Appellant apparently contracted a debt to Casey in Indio and gave him his check on a Los Angeles bank in payment of the same. We do not believe that this check was a "special contract" that of itself would require the suit to be brought in Los Angeles. To hold otherwise would require merchants accepting checks from customers living in distant parts of the state, in payment for goods sold, to follow these debtors to their homes or the homes of their banks in case the checks be not paid. We do not believe the legislature contemplated any such procedure in adopting section
The record in the Superior Court presented two facts in addition to those before the Justice's Court, namely: That the appellant was a resident of the city of Los Angeles and that the summons was served on him there. Upon the record presented the trial court held that the respondent court had jurisdiction of the person of appellant.
Jurisdiction of the person is obtained by the legal service of a valid process issued out of a court of competent jurisdiction *623
in a case or proceeding properly pending, or by a party voluntarily appearing, or by his seeking, taking or agreeing to some act or step in the proceeding or action to his benefit, or to the detriment of the other party, other than by one contesting the jurisdiction over his person only. (Sec. 1014, Code Civ. Proc; Chaplin v. Superior Court,
In the case before the court appellant demurred to Casey's complaint on the ground of lack of jurisdiction of his person, because of his residence in Los Angeles, to which he added the further ground that the check given constituted a special contract in writing payable, and to be performed in Los Angeles, and not in the township of Indio. The first specification was in effect an attack upon the service of summons in Los Angeles under the provision of subdivision 2, section 848 of the Code of Civil Procedure. The second specification went to the right of the court to entertain the action under the provisions of subdivision 7, section
In the case of Olcese v. Justice's Court,
[2] The demurrer of appellant did not confine itself to the question of jurisdiction of his person alone, but went further and presented another question of law vital to his defense. As he did this, he must be held to have appeared generally in the action, and that therefore the respondent court gained jurisdiction over his person. (Vance v. Superior Court,
Judgment affirmed.
Sloane, P.J., and Barnard, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on November 27, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 30, 1929.
All the Justices present concurred. *625