Opinion
2-10-1954
BADELLA et al. v. MILLER et al. * Civ. 15360.
Cooley, Crowley & Gaither, San Francisco, for appellants. Fitz-Gerald Ames, San Francisco, for respondents.
BADELLA et al.
v.
MILLER et al. *
Feb. 10, 1954.
Rehearing Denied March 12, 1954.
Hearing Granted April 7, 1954.
Cooley, Crowley & Gaither, San Francisco, for appellants.
Fitz-Gerald Ames, San Francisco, for respondents.
NOURSE, Presiding Judge.
Damages for the death of the husband and father of the plaintiffs in Sonoma County were sought by them in an unverified complaint filed in San Francisco County. All the named defendants except Earl George, a resident of San Francisco, moved for a change of venue to Sonoma County which was admittedly their place of residence. Their motion was supported by eight verified affidavits which were not controverted by verified affidavit or pleading. On the day and hour set for the hearing the defendants presented their motion along with their uncontroverted affidavits and, the plaintiffs failing to appear, the motion was granted. A minute order was thereafter entered and in the afternoon of the same day the court signed a formal order granting the motion and this was duly filed. Thereafter, and on the same day, plaintiffs' counsel appeared before the court ex parte and gave a reasonable excuse for his failure to appear at the morning session in response to the notice of motion. The court thereupon 'on its own motion' ordered the former order vacated and set aside on the ground that plaintiffs' failure to appear was excusable and that the order made in their absence was inadvertent. Later a full hearing was had on defendants' motion and that was denied. On this latter order defendants' appeal is founded.
The first point raised by appellants is that the court had no jurisdiction to set aside ex parte its former order.
The only Supreme Court case directly in point is not cited by the parties nor in Refrigeration Discount Corp. v. Superior Court, 91 Cal.App.2d 295, 204 P.2d 932. It is Baker v. Fireman's Fund Ins. Co., 73 Cal. 182, 14 P. 686. In that case the lower court had first granted a motion for change of venue and the next day had set it aside on the ground that it 'was inadvertently made' and had denied the motion. On appeal it was urged that by the first order the case was actually transferred and pending in the court to which it was transferred and that the original court had lost jurisdiction to set its order aside. The Supreme Court upheld the second order relying on Wiggin v. Superior Court, 68 Cal. 398, 9 P. 646, 648, which case states the general rule that 'the court has power to correct mistakes in its proceedings, and to annul, within a reasonable time, orders and judgments inadvertently made.'
In the Refrigeration case, supra, the lower court had also made an order changing venue (after full hearing) and then on a motion to reconsider held a second hearing and vacated the first order on the ground that it was 'void upon its face'. The appellate court held that the first order was not void on its face and that when a court makes and enters its order transferring the cause to another county 'the latter court immediately acquires sole jurisdiction, and the court which grants the motion 'has no power to make any further order in the premises.'' 91 Cal.App.2d at page 297, 204 P.2d at page 933. As main authority the Refrigeration case cites Chase v. Superior Court, 154 Cal. 789, 792, 99 P. 355. In the Chase case the court below had made an order changing venue. The defendant refused to pay the costs of filing the papers in the new court which he was required to do under section 399, Code of Civil Procedure as it then read. After more than a year the plaintiff made a motion to set aside the first order and to recall the papers on the ground of said non-payment. The lower court granted the motion and the Supreme Court reversed on the ground that the action was transferred when the order was finally made and entered. 'There must be a moment of time when the court transferring the case loses jurisdiction, and the court to which it is transferred acquires jurisdiction. When the court to which the action is transferred acquires jurisdiction, the court which made the order transferring it has no power to make any further order in the premises * * *. The code makes no provision as to inserting a condition in the order, nor does it provide that the order becomes void for a failure to pay the costs. * * * The order changing the place of trial having been made and entered in the clerk's office of the superior court of San Francisco, and the custody of the papers and records having passed from the clerk of the city and county of San Francisco to the clerk of Santa Clara County, the superior court of San Francisco had no further duty to perform, and no authority to compel the payment of costs in Santa Clara County.'
It should be noted that the Chase case does not expressly overrule the Baker case, and the main question therefore seems to be whether it overrules the Baker case implicitly, a question not treated in the Refrigeration case. There was in the Refrigeration case possibly somewhat less necessity to discuss the Baker case because the order changing venue was not set aside as inadvertently made but as void. It would seem that there is not necessarily an overruling by implication. The Chase case related solely to the consequences of the nonpayment of costs for filing in the court to which the case was transferred. A quotation at page 793 of 154 Cal. at page 357 of 99 P.2d, from People v. Suesser, 142 Cal. 354, 75 P. 1093, seems to indicate that the Supreme Court did not consider revocation of a change of venue by the court which granted it as excluded under all circumstances. Said quotation reads in part: "The statute provides that an order must be made transferring the action, and when such an order is legally made the court making it has no jurisdiction to proceed further in the cause so long, at least, as that order remains unrevoked."
The later statutory development of the problem of payment of fees in the court to which trial has been changed is of some interest. Section 399, Code of Civil Procedure was amended to provide that when the action is transferred because it was brought by plaintiff in the wrong court, plaintiff must pay the costs and fees and section 581b now provides that if such costs and fees have not been paid for one year after the entry of the order of transfer the action must be dismissed by the court in which the action was originally commenced. This shows that said court at least for one purpose keeps jurisdiction of the case transferred so long as the conditions for actual proceedings in the court to which the transfer has been ordered have not been fulfilled. In London v. Morrison, 99 Cal.App.2d 876, 222 P.2d 941, it was held that during the one year period the court which ordered the transfer had no power to dismiss the case for other reasons (voluntary dismissal). It was said that the order of transfer divested the original court of all jurisdiction except to dismiss the action under section 518b, Code of Civil Procedure but that the court to which transfer was ordered 'does not acquire jurisdiction until the transfer fee has been paid and the papers filed in that court.' 9 Cal.App.2d at page 879, 222 P.2d at page 944. Clearly although the court in the London case uses very general language the matter of setting aside an order inadvertently made was not involved.
All decisions can be harmonized if we accept the sensible solution that in general the jurisdiction of the original court to proceed with its normal functions in the case ceases as soon as the order for transfer is regularly made and filed, but that some special powers may continue until the conditions for the actual acquisition of jurisdiction by the court to which transfer was ordered have been fulfilled, the papers have been transmitted and maybe the fees have been paid. Among these special powers could be the power to set aside the order as inadvertently made.
This seems to be the basis for the general run of cases which at first glance appear to be conflicting. Though we do not find in the cases any clear definition of what constitutes 'inadvertence' the accepted rule is that the trial court has inherent power to vacate its orders which were not a result of a mistake or error of law but which were entered prematurely as a mistake of fact or accepted procedure.
We conclude that the trial court had jurisdiction to set aside the order for the reasons stated. It should be added, however, that if plaintiffs' counsel had appeared at the time set the court could not have avoided an order granting the motion since there was then no evidence by verified complaint or affidavit contradicting the facts alleged by the defendants.
But the order must be reversed on the merits. The theory of the unverified complaint was that all the defendants had some part in the ownership, management or control of the horse which caused the injuries. At the time of the first hearing this was supported by the unverified complaint signed by counsel for plaintiffs alone. At the time of the second hearing it was supported by the affidavits of plaintiffs' counsel and his son, both of which were based on their information and belief acquired partly from an unidentified source and both of which contained mere conclusions of law. Thus, on the hearing of the second motion the court had before it the verified affidavits of eight responsible parties confronted by the unverified complaint and the affidavits of plaintiffs' counsel which contained no facts upon which the denial of the motion could be based.
Briefly the theory of the complaint is that some undesignated person owned a horse named 'Saltie'; that defendant George leased some stables and a horse corral 'at or near Guerneville' from Mr. And Mrs. Miller; that two of the other defendants borrowed 'Saltie' and kept him in the pasture behind the barns or at the corral. No allegation of negligence is made as to defendant George and nothing is alleged as to any connection he might have had with the horse or the stable or with those who had possession and control of the horse and the stable at the time of the accident. His affidavit states that the horse 'was never at any time stabled in any stable with which affiant was at any time connected in any way whatever;' that neither he nor any employee of his 'at any time * * *, assumed, possessed or exercised any power to manage or control said horse', or had any connection with him. As we have said this statement was verified and was not controverted by any denial express or implied, except by the affidavit of Ames, Jr. that George told him that: 'It is probable that on some occasions at or about that time Dick Miller kept the horse known as 'Saltie' in one of the stalls which I leased from him.' This does not controvert the statements in defendants' affidavits that at no time did defendant George have or assume power to manage or control said horse.
This qualified statement of the probability as to where the horse was stabled does not controvert the positive assertions of the defendants as to the ownership, care and control of the horse at the time of the accident. We quote from the affidavit of Mrs. Richard Miller:
'That the horse which is the subject of this action was, on August 10, 1950, owned by affiant's son, Tom Miller; that on August 10, 1950, and for approximately two years prior thereto, said horse was pastured and stabled on land leased by affiant outside Guerneville; and that neither the defendant Earl George nor any employee of said defendant had any connection whatever with said land; and that said horse was never at any time stabled in any stable with which said defendant Earl George and/or any employee of said defendant were connected in any way whatsoever; that neither said Earl Geroge nor any employee of said Earl George at any time mentioned in the complaint in this action, or at any time at all, assumed, possessed or exercised any power to manage and control or manage and control said horse; and that neither said Earl George nor any employee of said Earl George at any time mentioned in the complaint in this action or at any time at all had any connection whatever with said horse.'
On the other hand the affidavit of plaintiffs' counsel, emphasized by him in the oral argument, discloses that the real purpose of joining George is the convenience of plaintiffs' witnesses who reside in San Francisco and the fear that because defendant Miller is a member of the Board of Supervisors of Sonoma County he would illegally influence the selection of jurors in that county so that plaintiffs would thereby be denied a fair trial. Now the primary question in motions of this type is where the plaintiffs joined the nonresident defendant in good faith. This is not met by the affidavit of plaintiffs' counsel that, long after the complaint was filed, and after the motion to transfer had been made, he then learned of a probability that the horse might at some time have been kept in one of the stables which George leased from its owner. The affidavit merely confirms George's contention that he was made a party to the action for the sole purpose of venue.
It is settled beyond question that on a motion of this kind the unverified complaint cannot be used as controverting the verified affidavits of the defendants. The issue presented is whether the defendant George has been properly joined. When the affidavits show that he has no connection with the case and this showing is not controverted by a verified pleading or by counter affidavits the affidavits of the defendants 'constitute the evidence upon which the validity of the order depends.' Woods v. Berry, 105 Cal.App. 90, 92, 286 P. 1073, 1074.
Since there is here no evidence controverting defendants' showing that neither defendant George nor any employee of his at any of the times mentioned had or exercised any power to manage or control the horse and at no time 'had any connection whatever with said horse' the motion for a change of venue should have been granted.
Order reversed with directions to grant the motion.
KAUFMAN, J., concurs.
DOOLING, J.
I dissent.
The question before the trial court was whether the defendant George was made a defendant 'solely for the purpose of having the action tried in the * * * city and county * * * whether he resides * * *.' Section 395, Code Civ.Proc.
In deciding this question 'the real issue for determination by the trial court was whether plaintiff, in joining the resident defendant as a party, had reasonable grounds for the belief in good faith that plaintiff had a cause of action against the resident defendant.' Gottesfeld v. Richmaid Ice Cream Co., 115 Cal.App.2d 854, 856, 252 P.2d 973, 975 and cases there cited.
The trial court decided this question in favor of plaintiffs, from which we must assume that the trial court believed that the admission of George as set out in Ames, Jr.'s affidavit was made, and decided that that admission furnished 'reasonable grounds for the belief in good faith' that plaintiffs had a cause of action against George. If this inference can be reasonably drawn from the admission made by George we should affirm the court's order.
The complaint counts on injuries inflicted by a horse. The complaint alleges as to George: that George possessed and exercised the power to control the horse (par. VI), that said horse was left unattended and improperly tethered by said defendants (par. VIII), that defendants knew, or in the exercise of ordinary care should have known, that said horse was dangerous when unattended (par. IX) and that as a proximate result of the negligence of defendants said deceased received injuries which caused his death (par. X).
In the investigation to determine who actually had control of the horse at the time it was so left unattended Ames Jr. interviewed George and George told him: 'It is probable that on some occasions at or about that time Dick Miller kept the horse known as 'Saltie' in one of the stalls which I leased from him.'
With this admission what would an ordinarily prudent attorney do in framing his complaint? He could certainly in good faith conclude that George should be joined as a defendant and that there were reasonable grounds for believing that it would develop that George did have control of the horse at the time that it was left unattended and that plaintiffs had a cause of action against him. That is all that is necessary to support the trial court's order.
The court should not try the case on its merits on a motion for change of venue. Gottesfeld v. Richmaid Ice Cream Co., supra, 115 Cal.App.2d 854, 856, 252 P.2d 973 and cases there cited. The question is not whether plaintiffs actually have a cause of action against George. The determination of that question must await the trial of the action on its merits. The only question is: At the time George was joined did the plaintiffs have reasonable grounds for the joinder and did they act in good faith? If, as we must assume, the trial judge found that at the time the action was filed relying on George's admission they did act in good faith and on reasonable grounds, it is quite immaterial that the affidavits of defendants if believed negative George's actual liability.
Questions of fact are traditionally for the trial court to decide and appellate courts have no power to reweigh the evidence. In my judgment the order should be affirmed. --------------- * Subsequent opinion 275 P.2d 5.