Gossman v. Gossman

[234]

DESMOND, P. J.

On December 14,1944, Walter Gossman, his brother, Otto, and his sister, Emma Healey, suing in her own behalf and as executrix and trustee under the will of their mother, Eosa Miller, joined as plaintiffs in filing a complaint to quiet title to various properties in which they were respectively interested. They named as defendants their brother, George Joseph Gossman, also known as Joseph G. Gossman and his wife, Jett G. Gossman. Although the record shows that service of the complaint was made upon George’s wife she never answered or appeared and her default was entered on February 17, 1945.

George Gossman, appearing in propria persona, filed a demurrer in his own behalf which, on December 29, 1944, was overruled with ten days allowed to answer. On January 8, 1945, he filed an answer and counterclaim as well as a cross-complaint, to all of which demurrers were filed. Motions to strike from the answer and the cross-complaint were also filed and the demurrers and motions were placed on the calendar for January 24, 1945. At that time, Honorable Alfred E. Paonessa, sitting in the Law and Motion Department ordered off calendar both motions to strike and the demurrer to the answer and counterclaim, an amended answer and counterclaim having been filed on the preceding day, January 23d. The judge then sustained the plaintiffs’ demurrer to the cross-complaint allowing ten days for amendment. Notice of the court’s action and ruling was served on George Gossman under date of January 29th.

On January 30th plaintiffs filed a demurrer to the amended answer and counterclaim, which was considered by Judge Paonessa and sustained on February 5th, ten days being granted the defendant for amendment. Notice of this action was served on defendant that same day but it does not appear from the record that another amended answer was filed and twelve days later, on February 17th, default of the defendant was entered upon the formal request of plaintiffs. On February 5th defendant had filed his amended cross-complaint “but without having served same upon plaintiffs or their attorney,” according to the decree of the court. On March 2d this amended cross-complaint was stricken on motion of plaintiffs. On March 13th, Honorable Emmet H. Wilson signed a decree in which the foregoing procedural matters and orders are recited, “the default of said defendant having been duly entered, and evidence having been introduced and heard in