Eveleth v. American Brass & Iron Foundry – Case Brief Summary (California)

In Eveleth v. American Brass & Iron Foundry (1962) 203 Cal. App. 2d 41, one individual (Bernson) sued another (Eveleth) in municipal court. (Eveleth v. American Brass & Iron Foundry, supra, 203 Cal. App. 2d at p. 42.)

Eveleth then filed a cross-complaint against Bernson and a company (American Brass), which was in excess of the jurisdictional limit of the municipal court. (Id. at pp. 42-43.)

"Summons was issued by the municipal court and served on American Brass, which made no appearance, ... and default was entered by the clerk of the municipal court on April 24, 1961. On May 18th an order was made by the municipal court transferring the action to the superior court because of the excess in the jurisdictional amount." (Id. at p. 43.)

Another default was entered in the superior court, and American Brass subsequently appealed from the order denying its motion to set aside the default. (Ibid.)

On appeal, one of the questions was whether American Brass's time to appear had already expired when the case was transferred to superior court. (Eveleth v. American Brass & Iron Foundry, supra, 203 Cal. App. 2d at p. 45.)

Citing Code of Civil Procedure section 396, the court noted "that where summons has been served but no appearance has been made, the time to answer or otherwise plead shall date from the service upon the defendant (which, in this case, is a cross-defendant) of a written notice of the filing of such action or proceeding in the court to which it is transferred." (Eveleth, at p. 46.)

With no analysis, and no authority other than the Bank of America case, the court concluded: "While section 396 of the Code of Civil Procedure refers to the parties as plaintiff and defendant, it is obvious that the section applies also to cross-complainants and cross-defendants." (Id., at pp. 46-47.)

In pertinent part, subdivision (a) of Code of Civil Procedure section 396 provides: "If an action or proceeding is commenced in a court that lacks jurisdiction of the subject matter thereof, as determined by the complaint or petition, if there is a court of this state that has subject matter jurisdiction, the action or proceeding shall not be dismissed ... but shall, on the application of either party, or on the court's own motion, be transferred to a court having jurisdiction of the subject matter that may be agreed upon by the parties, or, if they do not agree, to a court having subject matter jurisdiction that is designated by law as a proper court for the trial or determination thereof, and it shall thereupon be entered and prosecuted in the court to which it is transferred as if it had been commenced therein, all prior proceedings being saved. In that case, if summons is served prior to the filing of the action or proceeding in the court to which it is transferred, as to any defendant, so served, who has not appeared in the action or proceeding, the time to answer or otherwise plead shall date from service upon that defendant of written notice of filing of the action or proceeding in the court to which it is transferred."