277 P. 867 | Cal. Ct. App. | 1929
Plaintiff began this action to quiet title to a certain lot situate in the city of Los Angeles, county of Los Angeles. The defendant Lydia L. Lamb appeared and answered plaintiff's complaint, denied the plaintiff's *740 title, and alleged title in herself. On the trial of the issues so joined, judgment was entered in favor of the defendant, from which the plaintiff appeals. Upon this appeal the chief cause urged by the appellant as ground for reversal herein is "that the court erred in admitting, over plaintiff's objection, the association of an attorney with the defendant, who appeared inpropria persona." Other objections are raised, but only in a minor way, as to whether the defendant had shown title in herself. The appellant sets forth her objections under eight different headings, or rather, numbers, but they all relate to the two specifications which we have mentioned.
The record shows that the respondent in filing her answer to the plaintiff's complaint appeared in propria persona, and subsequently filed with the court the following:
"H.C. Hopkins is hereby associated as attorney of record in the above entitled cause.
"Dated, Los Angeles, September 24, 1926.
"Signed: LYDIA L. LAMB.
"The above association is hereby accepted.
"Signed: H.C. HOPKINS."
Upon this writing being filed, it appears that a motion was made in court, at a time when counsel for the plaintiff was present, for the association of the said H.C. Hopkins as an attorney for the defendant, and upon such motion, the court, preceding the trial of this action, made the following order, as appears from the minutes of the court in the clerk's transcript, to wit: "Grace P. Warden, et al., Plaintiff, vs. Lydia L. Lamb, Defendant. Cause called. J. Everett Brown appearing for plaintiffs and H.C. Hopkins for defendants. Substitution of attorneys allowed and trial continued to October 14, 1926, over plaintiffs' objection that no showing for continuance is made." Later on an attorney by the name of George Halverson was associated as an attorney in the same cause. On the nineteenth day of October, 1926, the cause having been transferred to department number 24, was called for trial, and the following appears in the clerk's transcript: "Cause transferred from department 24, called for trial, J. Everett Brown appearing for plaintiffs. On motion of H.C. Hopkins, it is ordered that H.C. Hopkins and George Halverson be substituted as attorneys for defendants. Attorney for plaintiffs *741 objects to substitution of attorneys and asks the court to enter the default of defendant Lamb, which motion is by the court denied. Cause is dismissed as to all fictitious defendants." Thereupon the trial of this action took place, the plaintiff introducing in evidence a tax deed to the plaintiff from the treasurer of the city of Los Angeles. The tax deed was the result of an alleged failure to pay the interest and certain installments due on an improvement bond issued as a lien against the lot involved under the Bonding Act of 1913 (Stats. 1913, p. 954), as amended by subsequent acts of the legislature.
Upon oral argument of this cause counsel for appellant pressed upon our consideration only the objection urged that the court erred in permitting the association of counsel and refusing to grant appellant's motion for the entry of a default against the defendant.
[1] As to the refusal of the court to grant appellant's motion for the entry of a default, it need only be stated that the appellant has not called to our attention any case or provision of the codes which would authorize a trial court to enter default against the party defendant whose answer is on file, and this whether the defendant does or does not appear at the trial. In case the defendant fails to appear, the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action. This being an action to quiet title, the only course open to the plaintiff, had the defendant failed to appear at the time of the trial, would have been to introduce evidence tending to establish the plaintiff's title. [2]
Section
[3] The appellant, in behalf of her objection to the order of the court in permitting the association of counsel and in permitting counsel to appear and introduce testimony in behalf of the defendant, cites a number of cases where attorneys have not been entered of record, where attempts have been made by such attorneys to serve papers, prepare bills of exceptions, and to take appeals. It seems unnecessary to review these cases for the simple reason that *742
no such questions are here presented. Section
[6] The court found that the defendant, at the time of the beginning of the action, was the owner in fee and entitled to the possession of the property involved. The court further found that the plaintiff had acquired no title to the premises. It was also further found by the court that the defendant had tendered to the plaintiff payment of the amount due on the bond, and that such tender was refused. So far as defendant's title is concerned, the record shows that the defendant acquired title thereto in the year 1900, and that for many years preceding the trial, and during the time of the proceeding leading up to the execution of the deed under which the plaintiff claims title, the defendant had been in possession of the property involved in this action. While there is no finding of the fact of such occupancy of the premises and possession by the plaintiff, the testimony in the record is such that such a finding would be warranted, which testimony appears to be uncontradicted. While the appellant, upon oral argument, made no answer to the respondent's contention that the deed under which the appellant claimed was void, nor is there any contention made in appellant's briefs that the deed under which the appellant claims is valid, further than the statement that the introduction of the deed established a prima facie
case, we will point out one or two of the errors which constitute sufficient reason for the entry of judgment in favor of the defendant in this action. Section 35 of the act of 1913 (Stats. 1913, p. 975), provides for a sale of the property to obtain payment of any amount that may be due upon any bond, where there has been a delinquency in the payment of interest or installments, and requires that in the publication of the notice of sale there must be a statement of the amount due. The application made to the treasurer for the sale of the property involved in this action does not state the amount due. The notice of *745
publication does not correctly state the amount due in an amount greater than has been held substantial error in other cases. Under somewhat similar circumstances in the case of (Chapman v.Jocelyn,
Other objections are made to the validity of the sale under which the appellant claims, such as there had been no notice as the law requires of the time when the appellant would apply for a deed; likewise, that no notice had been given to the persons occupying the premises as required by the act, in pursuance of which the bond was issued. To these different contentions on the part of the respondent, as we have stated, the appellant makes no reply, and as they appear to be all well taken, the judgment of the trial court in favor of the defendant followed as a matter of course.
Finding no substantial error in the record, the judgment is affirmed.
Thompson (R.L.), J., and Finch, P.J., concurred.