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Tubby v. Tubby

District Court of Appeals of California, First District, Second Division
May 19, 1927
256 P. 586 (Cal. Ct. App. 1927)

Opinion

Hearing Granted by Supreme Court July 18, 1927.

Appeal from Superior Court, City and County of San Francisco; Benjamin K. Knight, Judge.

Divorce action by Oliver G. Tubby against Leah Rodman Tubby. From an order modifying a final decree of divorce, plaintiff appeals. Reversed.

COUNSEL

J. L. McNab, of San Francisco (R. H. Countryman, of San Francisco, of counsel), for appellant.

Clara Shortridge Foltz, of Los Angeles, for respondent.


OPINION

NOURSE, J.

On June 8, 1923, the defendant obtained an order modifying a final decree of divorce which had been granted to the plaintiff upon the ground of the defendant’s willful desertion. In the final decree the custody of the minor child of the parties was awarded to the defendant "by the consent of the plaintiff," but no order was made respecting the payment for the care or support of the child. The property rights of the parties were settled out of court, and, by agreement, the plaintiff paid to the defendant the sum of $35 a month for the child’s support. This continued until May, 1923, when the defendant served upon plaintiff an order to show cause and notice of motion to modify "the order heretofore made *** and for a further order commanding the plaintiff to pay the sum of $50 per month for the support and maintenance of the minor child." Neither the order to show cause nor the notice of motion stated the grounds upon which they were based, and neither was served upon plaintiff’s counsel of record. An affidavit of the defendant was referred to in the notice, but this was not served on either plaintiff or his counsel.

On the day set plaintiff’s counsel appeared in open court and arranged for a continuance, and this was granted without any hearing on the merits of the motion. On June 8, 1923, the day to which the matter was continued, defendant’s counsel procured an order from the presiding judge transferring the cause to another department for hearing at 10 o’clock a.m. of the same day. No notice of this transfer, either written or oral, was given to plaintiff or to his counsel. At 12 o’clock noon of that day the matter was called and the absence of plaintiff and his counsel was noted by the court. Upon the representation of defendant’s counsel that she had communicated by telephone with the office of plaintiff’s counsel and had been informed by some one in the office that said counsel had withdrawn from the case, the court heard the motion and entered an order awarding to the defendant the sole custody of the minor child and fixing the sum of $50 a month as the sum plaintiff should pay for the child’s maintenance.

The appeal from this order is based upon the ground that it was beyond the jurisdiction of the trial court. The argument is founded upon the failure to state any grounds of the motion, the failure to serve appellant’s attorney with any notice of any character, the failure to serve on either appellant or his attorney a copy of respondent’s affidavit, and the failure to serve upon either any notice of the reassignment of the cause to the department where it was heard. Respondent does not answer any of the points raised by appellant, but rests her brief on the argument that the welfare of the child demands that the mother should have its custody and that the father should pay a reasonable sum for its support.

It is elementary that when written notice of a motion is required the grounds of the motion must be stated. Code Civ. Proc. § 1010. If reliance is placed on the grounds set forth in the affidavit to excuse the omission of the statement of grounds in the notice (Savage v. Smith, 170 Cal. 472, 150 P. 353), the affidavit does not cure the defect unless served with the notice (Code Civ. Proc. § 1010).

It would seem equally clear that when an attorney has appeared for a party he is entitled to notice of motions of this character until a valid substitution has been made. Code Civ. Proc. § § 285, 1015. The process of changing an attorney of record is provided in sections 284 to 287, Code of Civil Procedure, and until a valid change has been made the other party must recognize the former attorney.

When an attorney appears for the sole purpose of asking a continuance, he is not to be deemed to have made a general appearance (Davenport v. Superior Court, 183 Cal. 506, 509, 191 P. 911), and so, when appellant’s counsel of record asked for a continuance of the hearing, he cannot be said to have waived all objections to the court’s jurisdiction to hear the matter on the merits.

The continuance until June 8 being regular, it was incumbent upon the respondent to notify appellant or his counsel that the matter had been assigned to another department, and notice to the office over the telephone is not sufficient, even if the impression is given that counsel has withdrawn from the case. The danger of practice of this kind is illustrated by this particular case. Respondent’s counsel proceeded on information from some one in her adversary’s office that counsel had withdrawn from the case, and the hearing was held and the order made in the absence of both appellant and his counsel, and this telephone information was the only excuse for the failure to give legal notice. This information afterwards proved to be incorrect; appellant’s counsel had not withdrawn, but he failed to appear because he had no notice of the place of hearing.

Order reversed.

We concur: KOFORD, P. J.; STURTEVANT, J.


Summaries of

Tubby v. Tubby

District Court of Appeals of California, First District, Second Division
May 19, 1927
256 P. 586 (Cal. Ct. App. 1927)
Case details for

Tubby v. Tubby

Case Details

Full title:TUBBY v. TUBBY.

Court:District Court of Appeals of California, First District, Second Division

Date published: May 19, 1927

Citations

256 P. 586 (Cal. Ct. App. 1927)