Drew v. Superior Court

This is a petition for a writ of review, by which the petitioner seeks to have an order of the superior court of Mendocino County, adjudging him guilty of contempt of court, annulled and set aside.

The material facts of the matter may be briefly stated as follows: On the twenty-eighth day of October, 1918, in an action then pending in the said superior court of Mendocino County, entitled Phil Lobree, Plaintiff v. L. E. White Lumber Company, a Corporation, and Goodyear Redwood Company, a Corporation, Defendants, judgment was rendered in favor of the plaintiff and against the defendants for the sum of $7,150, with interest and costs. On the fourth day of August, 1919, Robert Duncan, the attorney for the plaintiff in said action, filed and presented to the judge of said court his affidavit wherein he set forth the rendition of the said judgment; the issuance on November 30, 1918, of an execution against the property of the said judgment debtor, L. E. White Lumber Company, and that the execution was afterward returned wholly unsatisfied; that the said L. E. White Lumber Company had its principal place of business in the city and county of San Francisco; that said F. C. Drew was at the time of the commencement of said action and at all times since has been the president and general manager, of the said L.

The said affidavit prayed for the appointment of a referee in the city and county of San Francisco, and that an order be made requiring said judgment debtor L. E. "White Lumber Company by its president and general manager, F. C. Drew, and by its other officers and directors, to appear before the said referee, and to answer concerning the property of said company, and 'to produce before the referee its books showing the property and moneys belonging to the said corporation.

Upon the presentation of this affidavit the court on the fourth day of August, 1919, made its order appointing one Casper A. Ornbaum referee and ordered the said judgment debtor L. E. White Lumber Company, by its president and general manager, F. C. Drew, and said F. C. Drew, to appear before the said referee on the fourteenth day of August, 1919, at 2 o’clock P. M., and submit to examination and make discovery under oath concerning the property of the said company, and to bring before the referee the books of account of the said company.

This order of the court, together with the said affidavit of Robert Duncan, was duly served on F.

The petitioner claims that the superior court of Mendocino County was without jurisdiction to render its judgment in contempt against him, because: (1) The order made by the court for him to appear and submit to an examination was entitled in an action not pending in said superior court, in this, that the said order was entitled “Paul” Lobree vs. L. E. White Lumber Company, a Corporation, et al.; (2) because the judgment sought to be enforced in the supplement proceedings, in which petitioner was adjudged guilty of contempt, was null and void by reason of the fact that said judgment was made and entered in an action brought against L. E. White Lumber Company, which action was instituted after the said company had forfeited its charter by reason of its failure to pay its annual franchise tax, which forfeiture occurred on March 3, 1917.

[1] 1. The affidavit of Robert Duncan above referred to, and upon which the said order to appear for examination was based, was properly and correctly entitled, as follows, to wit: “Phil Lobree vs. L. E. White Lumber Company, et al.” This affidavit gave the correct date of the judgment and the amount thereof, and also the date when the judgment was entered and docketed. It recited also the date of the issuance of the execution and the fact that the execution was returned wholly unsatisfied. The order of examination made on this affidavit, as before stated, was entitled “Paul Lobree, Plaintiff,” instead of “Phil Lobree, Plaintiff.” This error in the title of the cause did not in our opinion render the order void, and no one could be misled by reason thereof.

It is perfectly clear from the statements contained in said order that it was an order for examination made in the case of Phil Lobree vs. L. E. White Lumber Co., a Corporation, et al.; that such is the fact is plain from the following statements contained in the order: It refers to the said affidavit, giving the name of the affiant and stating that he was the attorney for the plaintiff, and further stated that it appeared by the said affidavit “and by the records on

It likewise appears from the affidavit of the petitioner ' filed in the superior court of Mendocino County, in answer to the order to show cause, why he should not be punished for contempt; that there was served upon him on the ninth day of August, 1919, a certified copy of said affidavit of Robert Duncan, and also of .said order and “that to said affidavit there was attached a certificate of Hale Prather, County Clerk and Ex-officio Clerk of the Superior Court of the County of Mendocino, certifying that he had compared the foregoing copy of an order and affidavit in the case of Phil Lobree, Plaintiff, vs. L. E. White Lumber Company, a Corporation, et al., Defendants, with the original records, as the same remained in his office, and that the same were correct transcripts thereof and of the whole of said original documents. ’ ’

There can be no question from the foregoing statements contained in the order that it was made in the case of Phil Lobree vs. L. E. White Lumber Company et al., and that the error in the title of the cause is wholly immaterial, as all the information concerning the action and judgment was fully and accurately given in the order and in the affidavit of Robert- Duncan, certified copies of which were served on petitioner on the ninth day of August, 1919. The error was merely a clerical error and no one could be deceived or misled thereby. It was held in Ex parte Gordan, 95 Cal. 374 , [ 30 Pac. 561 ], that an order that the husband pay a monthly allowance for the support of a minor child

2. The claim of the petitioner that the judgment is void, because the action in which it was rendered was instituted after the defendant L. E. White Lumber Company had forfeited its charter, by reason of its failure to pay its franchise tax for the year 1916, cannot be sustained. It appears from the record that the action was commenced on the twenty-fifth day of June, 1917. [2] The complaint was verified and alleged, “that said defendant, L. E'. White Lumber Company, is now, and was at all the times in this complaint mentioned, a corporation, duly organized and existing under and by virtue of the laws of the state of California.” This allegation of the complaint was admitted by the answer of said corporation, in failing to deny the same, and the court found that the said allegation of the complaint was true. The corporate existence of said company being thus established by the said admission of the pleadings, the judgment entered thereon is final and conclusive upon said matter and is not open to attack in this proceeding.

In the case of Alaska Salmon Co. v. Standard Box Co., 158 Cal. 567 , [ 112 Pac. 454 ], there was a special defense in which it was alleged that the plaintiff was a corporation, organized, existing, and doing business under and by virtue of the laws of the state of California. That at all times from its incorporation it has wholly failed to comply with the provisions of the act imposing a license tax upon corporations and had wholly failed to pay its license tax. No evidence was introduced in support of this plea, and judgment was entered in favor of plaintiff. The court said that “the answer itself avers that the plaintiff is a corporation and is engaged in business as a corporation. This is an admission of the plaintiff’s corporate capacity to sue. . . . The corporate existence ' and general capacity of plaintiff thus being established by the admission of the pleadings it was a matter of affirmative defense- for the box company to have shown the extraneous, fact that plaintiff had failed to com

It follows that the petitioner was in contempt of court in failing to obey the order of August 4, 1919, directing him to appear before the referee for examination, and the court was in the exercise of its jurisdiction in holding him guilty of contempt. It is therefore ordered that the writ of review he, and the same is hereby, dismissed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 17, 1920.

All the Justices concurred.