Opinion
Welford R. Wilson, Los Angeles, for defendant and appellant.
Herbert M. Porter, Los Angeles, for plaintiff and respondent.
KINGSLEY, Justice.
Respondent secured a judgment against appellant in small claims court. Appellant then retained an attorney to perfect an appeal from this judgment to the superior court. Appellant's attorney filed a statement on appeal and an undertaking on appeal and on each of these documents the attorney's name, address and telephone number were listed as attorney of record.
The clerk of the superior court thereafter served notice of trial in that court on respondent and on appellant, personally, but served no notice on appellant's attorney. For reasons not disclosed by the record on appeal, the attorney was never advised by his client, or otherwise, of the trial date. When the matter was called for trial, there being no appearance for appellant, judgment was entered for respondent as a matter of course. Appellant duly, and within three weeks, moved to vacate the judgment, which motion was denied. This appeal from the order denying the motion followed. Such an order is appealable. (3 Witkin, California Procedure, p. 2172.)
While the motion was noticed as based on all the provisions of section 473 of the Code of Civil Procedure, no showing in support of the motion was made other than the single point of lack of notice to counsel discussed below. Since no effort was made, by declaration or otherwise, to show any excuse for the nonappearance other than this alleged defect in notice, appellant must prevail, if at all, on that technical point.
Appellant's theory is that his counsel had, by filing of the notice of appeal from the small claims court, in the manner set out above, become an "attorney of record" in the superior court and, therefore, entitled to service on him of the notice of trial. Appellant relies on section 1015 of the Code of Civil Procedure, which (so far as here pertinent) provides: "*** in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except service of subpenas, of writs, and other process issued in the suit, and of papers to bring him into contempt."
On the other hand, respondent contends that appellant did not file a formal notice of change or substitution of attorney as required by Code of Civil Procedure section 284, and rule 139 of California Rules of Court. Therefore, it is contended, appellant, without this formal substitution or change of attorney, remained the attorney of record, and service upon him of the notice of trial was proper.
The nature, theory and function of the small claims court has been summed up as follows: "The theory from the standpoint of a small debtors' court is that litigation by the common-law method over small claims is wasteful, and fails to bring practical justice because of an expense out of proportion to the amounts involved, the time of the parties consumed in the litigation when they should be engaged otherwise, and the attendant delay in reaching a result. The legal profession notes the waste more clearly than layman. It is recognized that to some extent defendants decline to pay knowing that the smallness of the claim practically insures against compulsory payment. It is recognized that some persons having small claims submit to a denial of payment because they cannot incur the expense and await the termination of the ordinary trial." (Flour City Fuel and Transfer Co. v. Young (1921) 150 Minn. 452, 185 N.W. 934; see also Prudential Ins. Co. v. Small Claims Court (1946) 76 Cal.App.2d 379, 173 P.2d 38, 167 A.L.R. 820.)
Section 117g of the Code of Civil Procedure, as it pertains to this appeal, provides: "No attorney at law or other person than the plaintiff and defendant shall take any part in the filing or the prosecution or defense of such litigation in the small claims court. ***" This statutory prohibition, coupled with the nature, theory and function of the small claims court, leads to the conclusion that a party appearing in small claims court appears solely as a "party" and not "in propria persona."
I. e., as acting for himself without an attorney but where he could retain one to represent him, if he wished.
When appellant engaged an attorney to perfect an appeal to the superior court there was no "change" or "substitution" of attorneys; rather, such attorney was the first attorney of record. Therefore, the requirements of section 284 of the Code of Civil Procedure, and rule 139 are inapplicable to the situation before us. They apply only when, in fact, there has been a "change" or a "substitution" of attorneys.
Since the attorney engaged by appellant was the first "attorney" in this proceeding, the clerk of the superior court was bound to comply with section 1015 of the Code of Civil Procedure in serving the notice of trial. The motion to set aside default judgment should have been granted.
The order appealed from is reversed with directions to grant the motion to vacate.
BURKE, P.J., and JEFFERSON, J., concur.