Opinion
Hearing Granted by Supreme Court March 3, 1927.
Application by the Charles L. Donohoe Company for writ of mandate to the Superior Court of Glenn County, Claude F. Purkitt, Judge thereof. Writ granted.
See, also, 248 P. 1007.
COUNSEL
W. T. Belieu, of Willows, and Frederick Olds, of San Francisco, for petitioner.
George R. Freeman, of Willows, for respondents.
OPINION
GLENN, Presiding Justice pro tem.
Petitioner seeks a writ of mandate directing respondents to dismiss as to it a certain action for the foreclosure of a mortgage pending in the superior court of the county of Glenn, wherein Frank Freeman is plaintiff and Charles L. Donohoe, Charles L. Donohoe Company, a corporation, petitioner herein, and others, are defendants.
The petition for the writ is based upon a motion for a dismissal of said action made by the petitioner, one of the defendants therein, in said superior court, and the denial thereof by said court; said motion having been so made on the ground that the said action was not brought to trial within five years after the filing of the answer of the defendants, and that no written stipulation extending the said time had been made by the said defendant. In the action referred to all of the defendants appeared by their attorney, W. T. Belieu; their answer having been filed on April 6, 1921. The case was not brought on for trial within five years after the filing of the answer, nor was the trial thereof continued beyond the said five years from the filing of the answer upon notice to, or consent of, the said W. T. Belieu, the attorney of record for the said Charles L. Donohoe Company, a corporation. Likewise, no stipulation, either oral or written, was ever made by the attorney of record for the said defendant Charles L. Donohoe Company, extending the time for the trial of said action beyond five years from the filing of the answer of the said defendants. On May 7, 1926, said Charles L. Donohoe Company, a corporation, through its said attorney, W. T. Belieu moved the said superior court for a dismissal of said action as to it, pursuant to notice of motion theretofore duly given; said motion having been based on the ground above stated. The court made its order denying the motion after hearing the evidence produced by the respective parties.
The motion should have been granted. The undisputed facts as above recited present a plain case for dismissal under the latter portion of section 583 of the Code of Civil Procedure, which provides for the dismissal of an action which has not been brought on for trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended. That portion of the said section applicable to the facts as above set forth has frequently been held to be mandatory. Anderson v. Superior Court, 187 Cal. 95, 200 P. 963, and cases cited; Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 219 P. 1006.
The answer sets forth, in substance, three grounds of defense: (1) That a written stipulation was made by the said defendant (petitioner), extending the time for the trial of the said cause beyond the said five-year period; (2) estoppel; (3) that the action of the superior court in denying the motion to dismiss is conclusive so far as this proceeding in mandamus is concerned. The answer, however, when examined in the light of the evidence produced on the hearing of the motion to dismiss, will be found to be evasive, and, in fact, tenders no material issue. There is no denial, and in the face of the record there could be none, of the fact that W. T. Belieu had been at all times the sole attorney of record for the said defendant, Charles L. Donohoe Company, a corporation, and also the further fact that there had been no written stipulation signed by him extending the time within which to bring the case to trial as provided by section 583 of the Code of Civil Procedure. These important facts are attempted to be met by the claim of the defense that a certain attorney at law, other than the said W. T. Belieu, the attorney of record, was in fact acting as the attorney in the foreclosure case for the said Charles L. Donohoe Company. This claim is based upon the contention of the respondents, evidence as to which was introduced on the hearing of the motion to dismiss, to the effect that said attorney had so represented himself at various times to George R. Freeman, attorney for plaintiff, one of said occasions being in the presence of Charles L. Donohoe and his wife, officers of said company, in open court, and another occasion being in the chambers of the judge thereof; that it was pursuant to correspondence between said George R. Freeman and the said attorney not of record that the trial of said foreclosure action was postponed beyond the said five-year period mentioned in said section 583 of the Code of Civil Procedure. The plea of estoppel is based upon the same facts.
It might be added here that, in explanation of the position of the said attorney above referred to, it was the latter’s claim that, having been the attorney of record for the Charles L. Donohoe Company in a suit to quiet title, he intended in his letters to Mr. Freeman to refer to that case, which was somewhat similar in its title to that of the foreclosure case, and disclaimed any connection with the latter suit. We refrain from referring to the facts of this feature of the case in detail or to the testimony to the effect that he was not authorized to act for said company in the foreclosure case, as it is immaterial so far as the merits of the case is concerned.
The written stipulation purporting to extend the time for the trial of said foreclosure action alleged in the answer filed herein to have been made "by the defendant in said action" consists of certain correspondence between said George R. Freeman, attorney for plaintiff in the foreclosure suit, and the said attorney, who, as above stated, was not an attorney of record for any of the defendants in said action, and who had never been associated with or requested to appear or act for the said attorney of record, W. T. Belieu. There is no assertion made of bad faith on the part of Mr. Belieu. In fact, the record shows that apparently he was entirely unaware of the communications passing between Mr. Freeman and the attorney referred to with reference to postponing the trial of the foreclosure case until about the time the notice of motion to dismiss was served.
1. Under the facts of the instant case, the purported stipulation (assuming for the purpose of this decision that the correspondence referred to above constituted such), extending the time for the trial of the action, having been made by an attorney not of record in the action, and who was without authority to enter into the same, must be disregarded. The rule of law applicable to the facts recited above is stated in 3 California Jurisprudence, p. 3, as follows:
"A party may appear either in propria persona or through an attorney, but he cannot do both; and if, and as long as, he has an attorney of record, the court cannot recognize anyone in the conduct of the case except such attorney. It is indispensable to the orderly conduct of the case that if a party has engaged an attorney who appears in the case, that the attorney shall have the sole management and control of the action, so long as he is the attorney of record. The client, therefore, cannot assume control of the case as against his attorney."
Also, to the same general effect, are the following: Boca & Loyalton R. R. Co. v. Superior Court, 150 Cal. 153, 88 P. 718; McMunn v. Lehrke, 29 Cal.App. 298, 155 P. 473; Board of Commissioners v. Younger, 29 Cal. 147, 87 Am. Dec. 164; Mott v. Foster, 45 Cal. 72; Wylie v. Sierra Gold Co., 120 Cal. 485, 52 P. 809; Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 P. 797.
If we assume that the Charles L. Donohoe Company, a corporation, one of the defendants in the foreclosure case, desired to change its attorney in said suit, although there is no evidence to this effect other than the statement attributed to said attorney before referred to, that result could have been accomplished in the method provided by law, but not otherwise. McMunn v. Lehrke, supra; Board of Commissioners v. Younger, supra.
2. There is no merit in the plea of estoppel by respondents. The acts of estoppel relied on consist of the statements attributed to the said attorney hereinbefore referred to and the conduct of Charles L. Donohoe and his wife, officers of said company, as previously set forth herein; it being alleged in the answer of respondents that the said Charles L. Donohoe and his wife were present in court and also in the chambers of the judge thereof when said statements of said attorney were so made, and offered no objection thereto.
On the question of estoppel the facts of this case clearly bring it within the rule laid down in Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 219 P. 1006. The instant case presents a stronger one against the plea of estoppel than the case last cited. It is clear from the authorities heretofore cited that, had its been established that the Charles L. Donohoe Company directed an attorney not of record to appear for it in the foreclosure suit and request a postponement of the trial of said action (and there is no evidence to this effect other than the statements attributed to such attorney himself), and the latter had acted accordingly, the court would have been without authority to entertain the same. Even a written stipulation signed in person by a party to an action who has an attorney of record must be treated as a nullity (Mott v. Foster, supra), and disregarded by the court (Crescent Canal Co. v. Montgomery, supra). Under these circumstances neither the plaintiff in the foreclosure suit, nor his attorney, was justified in relying upon an unauthorized consent to a postponement of the trial of said action, and waiver by way of estoppel cannot be predicated thereon.
3. Respondents earnestly contend that mandamus will not lie in this proceeding, for the reason that the superior court acted judicially upon the facts presented, and, under its discretionary power, denied the motion. There can be no question as to the correctness of the rule, and hence we refrain from referring to the many cases cited by respondents to the point. The contention of respondents, in this regard, cannot be successfully maintained under the undisputed facts of the instant case. The Supreme Court of this state, in disposing of a similar point, states the rule as follows:
"The proposition so strongly urged in behalf of respondent that mandamus will not lie in this proceeding because the matter submitted under the motion to dismiss called for the exercise of judicial and discretionary powers of the court, which cannot be called in question in this manner, is not maintainable. As already pointed out, the requirement to dismiss after five years, in the absence of a stipulation in writing extending the time, is mandatory. There was no issue presented that the five years had not elapsed, or that there had been a stipulation made between the parties. If such an issue had been made and the court had found as a fact in the case that no answer had been filed, or that five years had not elapsed, or that there had been a written stipulation between the parties for an extension of time, it may be conceded that the decision of the court as to such facts could not be reviewed in this proceeding. But where the express mandatory conditions for a dismissal are clearly established, and without contradiction, the court was without discretion in the matter." Anderson v. Superior Court, 187 Cal. 95, 200 P. 963.
To the same effect also is the case of Miller & Lux, Inc., v. Superior Court, supra.
Reference in the excerpt as quoted above from the Anderson Case to "a written stipulation between the parties for an extension of time" (italics mine) means, of course, the parties authorized to sign such; otherwise there can be no such stipulation. Bearing this in mind, we think there can be no doubt but that the express mandatory conditions requiring a dismissal as contained in section 583 of the Code of Civil Procedure clearly appear without contradiction.
The writ will issue as prayed for in the petition herein.
We concur: HART, J.; PLUMMER, J.