Opinion
3-1-1955
The GAGNON COMPANY, Inc., a Corporation et al., Plaintiffs and Appellants, v. NEVADA DESERT INN, Inc., a Corporation, Stanley Burke, et al., Defendants. Stanley Burke, Respondent. Civ. 20465.
J. George Bragin, Hollywood, and H. Ward Dawson, Jr., San Francisco, for appellants. Pearlson & Pearlson, Los Angeles, for respondent.
The GAGNON COMPANY, Inc., a Corporation et al., Plaintiffs and Appellants,
v.
NEVADA DESERT INN, Inc., a Corporation, Stanley Burke, et al., Defendants.
Stanley Burke, Respondent.
March 1, 1955.
Rehearing Denied March 30, 1955.
Hearing Granted April 27, 1955.
J. George Bragin, Hollywood, and H. Ward Dawson, Jr., San Francisco, for appellants.
Pearlson & Pearlson, Los Angeles, for respondent.
McCOMB, Justice.
From a judgment in favor of defendants after trial before the court in an action for fraud and mismanagement, plaintiffs appeal.
Facts: On October 20, 1947, a complaint was filed in the Eighth Judicial District Court in the State of Nevada, County of Clark, being case No. 38224, in which the plaintiff was Nevada Desert Inn, Inc., a corporation, and Stanley Burke, also a defendant herein, was one of the defendants. The Nevada law firm of Morse and Graves by Harold M. Morse appeared of record as attorneys for plaintiff. Verification of the complaint was made by one Lela M. Anderson, who swore to the fact she was the Secretary of the Nevada Desert Inn, Inc., a Nevada corporation, and made the verification for and in behalf of said corporation. In the verification she stated that she had read the complaint and knew the contents thereof, and that the same was true of her own knowledge except as to such matters therein stated upon information and belief, and as to those matters she believed it to be true.
On November 16, 1950, said action No. 38224 was dismissed with prejudice by the Nevada court as a result of a Dismissal with Prejudice filed by plaintiffs' counsel, Morse and Graves, by Harold M. Morse.
April 11, 1949, the present action was filed and on December 21, 1953, after evidence was taken on the issue of res judicata, dismissed on the grounds that the Nevada action was res judicata as to the present action, and judgment entered accordingly.
Questions: First: Did Lela M. Anderson and/or Harold M. Morse have authority to file the Navada action No. 38224, and even assuming they had such authority, would it extend so far as to permit Mr. Morse, as attorney, to dismiss the action with prejudice?
This question the trial judge properly refused to consider and it will not be considered by this court for the reason that a judgment, valid on its face, cannot be collaterally attacked on the ground that an attorney, appearing for parties in the action, was not authorized to appear for such parties. The attorney being an officer of the court, it will be presumed that he acted within the scope of his employment. (Westwood Temple v. Emanuel Center, 98 Cal.App.2d 755, 759, 221 P.2d 146, hearing denied by the Supreme Court; May v. Rosen, 91 Cal.App.2d 794, 798, 205 P.2d 1118; Parkside Realty Co. v. MacDonald, 167 Cal. 342, 347, 139 P. 805; Deegan v. Deegan, 22 Nev. 185, 37 P. 360, 361.)
This rule is supported by legislative enactments and appellate authorities in both California and Nevada. In California, the Code of Civil Procedure, section 283, reads: ' § 283. Authority. An attorney and conselor shall have authority: '1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the Clerk, or entered upon the minutes of the Court, and not otherwise; '2. To receive money claimed by his client in an action or proceeding during the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment. (Enacted 1872; Am.Code Amdts. 1880, p. 57.)'
In Bogardus v. O'Dea, 105 Cal.App. 189, 287 P. 149, 150, it was urged, as plaintiff does here, that the dismissal signed by an attorney could not operate as a retraxit, because a retraxit could not be given by an attorney, but only by the plaintiff in person. The reviewing court, in construing section 283, Code of Civil Procedure, stated at page 193, 'This (referring to appellant's contention) was the rule at common law, but is not the rule in California, where, under the statutory provisions relating to attorneys at law (section 283, Code Civ.Proc.), 'this authority must be considered to be conferred upon the attorney of record in a cause.' (Citing cases.)' (See also Westwood Temple v. Emanuel Center, supra, 98 Cal.App.2d at page 759, 221 P.2d 146; Wilson v. Barry, 102 Cal.App.2d 778, 780, 228 P.2d 331; In re Estate of Pailhe, 114 Cal.App.2d 658, 661, 251 P.2d 76.)
A similar statute of the State of Nevada is almost identical in wording. Section 600 of the Nevada Compiled Laws, reads: '600. Authority of Attorney. § 10. An attorney and counselor shall have authority: First--to bind his client in any of the steps of an action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise. Second--To receive money claimed by his client in an action or proceeding during the pendency thereof, or within one year after judgment and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction in the judgment.'
Deegan v. Deegan, supra, announced the same rule as the appellate courts of California. (See also State v. California Min. Co., 15 Nev. 234, 243.)
Second: Was the doctrine of res judicata applicable as between the Nevada action and the California action?
Yes. The allegations set forth in the complaint in the Nevada action and the allegations in the complaint in the California action are almost identical. An action is res judicata and a bar to a second suit, not only as to issues actually determined, but also as to issues necessarily involved, and even though the causes of action be different, the prior determination of an issue is conclusive in a subsequent suit between the same parties as to that issue and every matter which might have been urged to sustain or defeat it. (Krier v. Krier, 28 Cal.2d 841, 843[1-2], 172 P.2d 681.)
Also where a complainant has either of two remedies available to him under the same alleged conduct of defendant, a judgment in favor of defendant in an action which seeks one such remedy is a bar to a subsequent action which seeks the alternate remedy. (Suisun Lumber Co. v. Fairfield School Dist., 19 Cal.App. 587, 593, 127 P. 349; Wulfjen v. Dolton, 24 Cal.2d 891, 894, 151 P.2d 846.)
There is no merit in plaintiffs' contention that because the alleged facts as set forth in their complaint have not been determined there has not been a decision on the merits. In Olwell v. Hopkins, 28 Cal.2d 147, 150, 168 P.2d 972, a judgment of dismissal was held to be res judicata even though there was not a trial upon the facts. The court said, 28 Cal.2d at page 150, 168 P.2d at page 974, 'A decision on the merits, however, is not necessarily a decision upon the facts.'
Under the foregoing rules it is evident that the Nevada action was res judicata of the matters involved in the California action.
Third: Were there special circumstances presented in the instant case which makes applicable the doctrine as announced in Greenfield v. Mather, 32 Cal.2d 23, 194 P.2d 1, and Guardianship and Estate of Di Carlo, 3 Cal.2d 225, 44 P.2d 562, 99 A.L.R. 990?
No. There is a total absence in the record of any facts or special circumstances bringing the instant case within the purview of the two cited cases.
Affirmed.
MOORE, P. J., and FOX, J., concur. --------------- * The evidence is viewed in the light most favorable to defendant (respondent) pursuant to the rule set forth in Re Estate of Isenberg, 63 Cal.App.2d 214, 216, 146 P.2d 424. ** Opinion vacated 289 P.2d 466.