Wall v. Superior Court, Civ. No. 3367.

Civ. No. 3367. | Cal. Ct. App. | Jul 19, 1920

By this proceeding petitioner seeks to review the action of the superior court of Riverside County. On August 19, 1919, a complaint was filed in that court naming John J. Wall as a defendant. [1] Summons was served on defendant Wall personally in Riverside County on April 28, 1920. On May 5, 1920, defendant Wall gave notice of his special appearance for the sole purpose of moving to quash the service of summons, and filed therewith notice of motion to set aside the service of summons on the ground that he was a nonresident of the state of California, and, at the time of the service of summons on him, was but temporarily in this state for the purpose of attending the trial of a civil action to which he was a party. The notice of motion was accompanied by an affidavit setting forth the circumstances of his visit to California, as above indicated. At the same time Wall served and filed a demurrer to the complaint on the ground that the court had no jurisdiction of his person, in that it appeared upon the face of the complaint that he was a resident of the state of Nevada. On May 18th the court, after argument, granted the motion to quash the service of summons and sustained the demurrer to the complaint.

That by filing the demurrer to the complaint defendant Wall submitted his person to the jurisdiction of the court there can be no doubt, and the court erred in its action. (McDonald v. Agnew, 122 Cal. 448" court="Cal." date_filed="1898-11-26" href="https://app.midpage.ai/document/mcdonald-v-agnew-5449431?utm_source=webapp" opinion_id="5449431">122 Cal. 448, [55 P. 125" court="Cal." date_filed="1898-11-26" href="https://app.midpage.ai/document/people-v-tupper-5449425?utm_source=webapp" opinion_id="5449425">55 P. 125]; Olcese v.Justice's Court, 156 Cal. 82" court="Cal." date_filed="1909-07-07" href="https://app.midpage.ai/document/olcese-v-justices-court-of-the-first-judicial-twp-3301304?utm_source=webapp" opinion_id="3301304">156 Cal. 82, [103 P. 317" court="Cal." date_filed="1909-07-07" href="https://app.midpage.ai/document/olcese-v-justices-court-of-the-first-judicial-twp-3301304?utm_source=webapp" opinion_id="3301304">103 P. 317]; American Law BookCo. v. Superior Court, 164 Cal. 327" court="Cal." date_filed="1912-12-11" href="https://app.midpage.ai/document/am-law-book-co-v-superior-court-of-santa-clara-3305843?utm_source=webapp" opinion_id="3305843">164 Cal. 327, [128 P. 921" court="Cal." date_filed="1912-12-11" href="https://app.midpage.ai/document/am-law-book-co-v-superior-court-of-santa-clara-3305843?utm_source=webapp" opinion_id="3305843">128 P. 921].) [2] But petitioner cannot take advantage of this error by certiorari, for an adequate remedy exists aside from this proceeding. Judgment might have been entered on the demurrer, and an appeal would lie from such judgment.

Writ discharged.

Finlayson, P. J., and Thomas, J., concurred.