Roth v. Superior Court, 82 P. 246

Roth v. Superior Court

82 P. 246 | Cal. | 1905

On October 11, 1901, the State Bank and Trust Company commenced an action against this petitioner *605 to recover the amount of a promissory note. Summons and copy of the complaint were served the same day, and on the following day the parties by their respective attorneys entered into the following stipulation: —

"In the Superior Court of Los Angeles County, "State of California. "State Bank Trust Company, a corporation, Plaintiff,

"vs.

"Jules F. Roth, Defendant.

"It is hereby stipulated by and between the parties hereto that the above-named defendant may have to and including the twelfth (12th) day of November in which to plead in the above-entitled action.

"Dated this 12th day of October, 1901.

"LAWLER ALLEN, "Attorneys for Plaintiff.

"WALTER ROSE and "ROSS T. HICKOX, "Attorneys for Defendant."

Nothing further was done until February, 1905, except that through the attorneys time to answer was extended by verbal stipulation, at request of the petitioner. The summons was never returned, and in February, 1905, petitioner gave notice of a motion to dismiss the action upon the ground that more than three years had elapsed since its commencement without return of summons. After notice of this motion and before the hearing the attorneys for the plaintiff in that action filed the stipulation above quoted. The superior court denied the motion and threatens to proceed in the action. Petitioner asks that all further proceedings be stayed, and bases his claim to the writ upon the provisions of subdivision 7 of section 581 of the Code of Civil Procedure. We think the writ should be denied. The stipulation, signed as it was by petitioner's attorneys in the action, was a virtual appearance, and none the less so because it was not filed. The case comes fully within the reasoning and principle of decision of Cooper v. Gordon, 125 Cal. 296, [57 P. 1006], and is distinguished from the case of Vrooman v. Li Po Tai, 113 Cal. 302, [45 P. 470 *606 ], by the fact that in that case no stipulation was signed by any one as attorney for the defendant, while here a stipulation is signed by attorneys representing the defendant, and empowered to bind him in all proceedings in the action.

Writ denied and proceeding dismissed.

McFarland, J., Lorigan, J., Henshaw, J., Shaw, J., and Angellotti, J., concurred.