Anglo-Californian Bank, Ltd. v. Griswold

This is an appeal from a judgment of dismissal granted upon the motions of William C. Spencer and Eliza S. Eldridge, under the authority of subdivision 7, section 581 of the Code of Civil Procedure, and also upon the ground that “plaintiff has abandoned the prosecution of said action and has failed to prosecute the same with due or any diligence.”

The action is to foreclose mortgages upon real estate executed by Norman W. Griswold and Anna E. Griswold, his wife. These mortgages were in the form of deeds absolute. The complaint was filed April 26, 1898, and summons then issued. In the moving affidavits it is alleged, upon in

“To the clerk of said court:

“You will please take notice that we and each of us herewith enter our appearance in the above-entitled action and consent that judgment may be entered in favor of plaintiff herein as prayed for in said complaint.

“Dated July 14th, 1898.

“Norman W. Griswold,

“Anna E. Griswold.”

It is further shown by plaintiff that the Griswolds had requested the plaintiff not to proceed with the foreclosure, in the hope and expectation that the mortgaged property might increase in value so that they would be able to pay the mortgage debt from the proceeds of sales of parts of it. Thus, upon June 7, 1899, the Griswolds executed to plaintiff an authorization “to sell or convey any and all pieces of prop-. erty heretofore conveyed to you by us, or either of us, to any party or parties you may decide, and at such figures or upon such terms as you may determine, crediting all proceeds from the sale of said property to our or either of our indebtedness to your bank, and we hereby ratify and confirm any sales or conveyances you may make under this authorization.” So, whatever the delay in bringing plaintiff’s action to a judgment, it was attributable solely to the defendants’ instance and request. It was granted out of consideration for them and for what they believed to be their best interests. In June, 1899, W. 0. Spencer, one of the movents herein, commenced his action against the Gris-wolds to foreclose his mortgage lien upon some of the property affected by plaintiff’s suit. In that action this plaintiff filed its answer, setting up its mortgages. Spencer seems to have regarded the pleading of this plaintiff in his action as a cross-complaint, since he filed a reply thereto which he styled “plaintiff’s answer to defendant’s cross-complaint.” Negotiations followed between this plaintiff and Spencer, to the end that the mortgages should all be foreclosed

Respondents’ first contention in support of the dismissal which they obtained is one of strict law, based upon what they assert to have been plaintiff’s failure to comply with the mandatory provisions of subdivision 7 of section 581 of the Code of Civil Procedure. An appearance in an action under the laws of this state is defined by section 1014 of the Code of Civil Procedure. “A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, or when an attorney.gives notice of appearance for him.” It appears indisputably that the Griswolds gave to plaintiff a formal notice in writing addressed to the clerk of the court, not instructing the clerk to enter an appearance, but declaring that “herewith we do enter our appearance,” and this appearance was coupled with the consent that judgment might be entered in favor of plaintiff as prayed for in the complaint.

Of course, jurisdiction of a defendant is not acquired until the filing of such appearance in court (Cooper v. Gordon, 125 Cal. 300 , [ 57 Pac. 1006 ]), but the principal purpose of section 1014 of the Code of Civil Procedure is served in that, after giving written notice of appearance to plaintiff, the defendant is entitled to notice of all subsequent steps and proceedings in the action. In Cooper v. Gordon, 125 Cal. 300 , [ 57 Pac. 1006 ], it was held that a stipulation by defendant consenting that plaintiff might take judgment, though not filed until long after the three years, was when filed, an appearance, and a waiver of the provisions of subdivision 7 of section 581 of the Code of Civil Procedure, and estopped the defendant from moving to dismiss under the provisions of this section. In Roth v. Superior Court of Los Angeles County, 147 Cal. 604 , [ 82 Pac. 246 ], the parties entered into a stipulation extending the defendant’s time to plead. The stipulation was not filed and the time was. further extended by verbal stipulation until more than three years after the commencement of the action. The summons was never returned, and after the expiration of the three years defendants moved to dismiss, whereupon, in answer to the motion, plaintiff filed the stipulation. This court declared the unfiled stipulation to be an appearance, saying: “The stipulation, signed as it was by petitioner’s attorneys in the action, was a virtual appearance, and none the less so because it was not filed.” The case at bar is much stronger. Here the

Even less merit attaches to the second position taken by respondent that the court was justified in dismissing the action, because plaintiff: had abandoned his cause and had failed, to prosecute it with diligence. Plaintiff had prosecuted the-case to judgment before the motion was made, and assent to ■ the judgment was actually given by Mrs. Griswold for herself' and as executrix of her husband’s estate. The reason of the delay was fully explained as has above been set forth, and the attitude of the Griswolds themselves, the only defendants, in the action, is sufficiently evidenced by the conduct of the widow. She manifestly recognized the justice of plaintiff’s, claim and its right to a judgment. It was an abuse of discretion, therefore, for the court to have dismissed upon the ground last indicated.

For which reason the judgment of dismissal is reversed and', the cause remanded.

Lorigan, J., and McFarland, J., concurred.

Hearing in Bank denied.