Miller v. Superior Court

Petitioners, two minors both under the age of 14 years, by their guardian ad litem seek a writ of prohibition to restrain the Superior Court of Los Angeles County from proceeding against them in an action in which they are named as defendants, claiming that they were not properly served as such defendants.

In the subject superior court action John and Marion Graniczny appear as plaintiffs and the two minor petitioners and their parents, Arlo and Helen Jean Miller, are all named as defendants. Prior to October 18, 1960, each of the parents Arlo and Helen Jean was served with summons and complaint and on October 18, 1960, they filed their answer in the action in response to such service.

“On Thursday, December 15, 1960” (quoting from the affidavit of the father Arlo Miller, 1 filed in the superior court in support of a motion to quash the service of summons upon the minor defendants) “a man representing himself to be a process server left with me a copy of the Summons and Complaint in the above-entitled action, and indicated that he was serving me as Defendant Arlo Miller. He also: (1) left a copy of the Summons and Complaint with my minor son, Mark Miller, stating that he was…

I dissent.In my view, the holding in the majority opinion is contrary to a previous decision of this court in Akley v. Bassett, 189 Cal. 625, 639 [5] [ 209 P. 576 ], and of the District Court of Appeal in Bank of America v. Carr, 138 Cal.App.2d 727, 737 [10], [11] [ 292 P.2d 587 ]. If in truth the service required by law has been made, a return showing such service should be filed. I believe that this court should follow the doctrine of stare decisis. (See a splendid article on this subject by Mr. Presiding Justice Herbert C. Kaufman, A Defense of Stare Decisis (1959), 10 Hastings L.J. 283 .)

Schauer, J., concurred.