Granger v. Sherriff , 133 Cal. 416 ( 1901 )

This is an action to foreclose a mortgage given to secure the payment of a note for the principal sum of $48,500, besides interest and attorney's fees. The plaintiff had judgment, and defendants appeal therefrom, and urge three grounds of reversal, which we will notice in their order.

1. The sufficiency of the summons is challenged, and a motion was made to quash the same, on the ground that it did not conform to the requirements of section 407 of the Code of Civil Procedure, in that it did not contain a notice that unless the defendants appear and answer, "the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint."

The notice contained in the summons is as follows: "And you are hereby notified that unless you appear and answer as above required, the said plaintiff will apply to the court for the relief demanded in the complaint." Under said section 407 of the Code of Civil Procedure, before its amendment in 1897, there can be no question that a notice in a summons in the above form, in a foreclosure suit, would have been proper and sufficient.

We do not think that the amendment to the section had the effect to make a summons in such a suit insufficient, merely because the notice in it is not worded in the alternative. This has already been held, in effect, in the recent and well-considered case of Stanquist v. Hebbard, 122 Cal. 268, wherein it is said: "In deciding that a summons which follows the language of section 407 is not void, we do not intimate that a summons based on a complaint on contract for money or damages, or a summons based upon a complaint asking for equitable relief, would be void if not worded in the alternative. In one case a notice that unless the defendant appears and answers, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, and in the other case a notice that unless the defendant so appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint, would substantially comply with the statute."

It is objected by the appellant that this is mere dictum, and so indeed it seems to be, but it may be observed that it is thedictum of the court in Bank, and is supported by the reasoning of the opinion, wherein it is clearly pointed out, that, under the statute as amended, the summons leaves the defendant in the dark as to the nature of the cause of action as well as to the relief sought, and the copy of the complaint which is required in all cases as part of the service of process must be looked to for much of the information required by defendant. It seems, then, that the summons, aside from the copy of the complaint, being in the alternative, affords the defendant little or no notice or information, where it follows the statute strictly, as to what will be done in case of a default. The defendant, however, cannot he heard to complain because the summons goes further than the requirement of the statute, and does in fact furnish some definite information as to what the plaintiff will do in case of a failure on the part of defendant to appear and answer. The copy of the complaint is still left him, and he may refer to that, and treat the notice in the summons as supererogatory, if he so desires. We therefore think the "dictum" referred to contains a correct statement of a rule applicable to the case at bar.

2. Pending the litigation, and after she had appeared and answered, but before the trial, and on the eleventh day of November, 1898, Eliza Sherriff, one of the defendants, was adjudged to be insane, and ordered committed to the insane asylum. Thereafter the case was set for trial April 13, 1899, and on that day, on calling the case, the court adjourned the trial to the following day, at ten o'clock A.M., at which time counsel for plaintiff, without previous notice thereof having been given, moved the court for the appointment of a guardian ad litem for the said insane defendant. Thereupon Luce Sloane, attorneys of record for said defendant, appearing specially for that purpose, objected to the hearing of the motion and to the appointment of a guardian, on the ground that no notice had been "served on said Eliza Sherriff, or upon her attorneys of record in this case." The objection was overruled, and W.A. Sloane, of the said firm of Luce Sloane, was appointed and accepted the position of guardian ad litem, subject to the objections and exceptions taken to the power of the court to make such appointment.

There is no requirement of notice prior to the appointment of a guardian ad litem to be found in the statutes, so far as we have been able to ascertain; and it has been intimated in at least one case that no such notice is necessary. In Crawford v.Neal, 56 Cal. 321, it is said that "applications for such an appointment are made ex parte," and sections 373 of the Code of Civil Procedure is cited as confirming this statement. That section shows how a guardian "must be appointed," and as it does not provide for any notice, we think that no notice is required, and that the appointment was properly made on the application of the plaintiff, and without notice. (See also Code Civ. Proc., sec. 372; Emeric v. Alvarado, 64 Cal. 529, at p. 594.)

3. On said fourteenth day of April, and after his appointment as guardian ad litem and his acceptance thereof, W.A. Sloane, as guardian ad litem for said defendant Eliza Sherriff, appearing specially for that purpose, objected to proceeding with the trial on the ground that said defendant was adjudged insane, and was committed to and was still in the insane asylum, "and that said guardian ad litem has not had sufficient time to prepare for the trial, or to investigate and determine his rights and duties as such guardian ad litem." Whereupon, by order of the court, further hearing of said action was adjourned to Monday, April 17, 1899, at ten o'clock, A.M.

On the last-mentioned day and hour the said guardian again "objects to the trial of this action at this time," and moves the court that the order setting said cause for trial be vacated and set aside, on the ground that said action has been set down for trial without five days' notice or any notice thereof to said defendant Eliza Sherriff or to her guardian ad litem. To this motion the court made reply: "If you want time for preparation for trial, I will give it to you. If you do not, we will proceed with the trial." To which the said guardian replied, "This is all the appearance I care to make, — the one I make by motion here, — and I ask that the statutory time of notice be given." The motion was denied, to which the guardian excepted. An affidavit was filed, showing that no notice had been given.

We think the appearance of the guardian, as such, on April 14th, the day to which the trial had been postponed, and his objection to then going into the trial on the grounds then stated by him, constituted a waiver on his part, and on behalf of his ward, of the five days' notice of the setting of the case required by section 594 of the Code of Civil Procedure, as amended in 1899. The objection that he then made was, in effect, a request or motion to the court to continue the trial of the case; and that the court so understood it is evidenced by the fact that it at once made an order continuing it for three days. To the time fixed in this order no objection was made, and no suggestion of a desire to have the order setting the case for trial vacated came from the guardian at the date of this request. The case, then, is not different from what it would be if it had been set for trial for the 17th of April on the guardian's own motion. It was within the power of the guardian to waive the notice, and we hold that he did waive it.

The judgment should be affirmed.

Haynes, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed. Van Dyke, J., Garoutte, J., Harrison, J.