Alexander v. Superior Court

California Court of Appeal Apr 30, 1959 No. Civ. 23788Published

Before: Nourse

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Holding. The court held that the superior court lacked jurisdiction to entertain a cross-complaint seeking to establish paternity and child support against a third party, as the cross-complainant was not authorized to maintain such an action under the relevant Civil Code sections or the Code of Civil Procedure.

Issues

Whether a defendant in a paternity and support action may file a cross-complaint against a third party to establish that the third party is the father and liable for support.
Whether the trial court acts in excess of its jurisdiction by proceeding with a cross-complaint that does not meet the requirements of Code of Civil Procedure section 442.

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“We have concluded that the trial court would be acting in excess of its jurisdiction in attempting to try said issues.”

“That Jones is not a party who had the right to invoke the jurisdiction of the court under either of these sections is apparent.”

“By section 442 a cross-complaint is only authorized where the cross-complainant seeks affirmative relief relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought”

NOURSE, J. pro. tem.

By his petition filed herein Herbert Alexander seeks a writ of prohibition to restrain the superior court from taking further proceedings under or upon a cross-complaint filed against him by the real party in interest Lewis Jones.

There is no dispute as to the facts; they are: One Ruth Jones filed a complaint in the respondent court on her own behalf and on behalf of Yvonne Angela Alexander Jones, a minor, naming the real party in interest Lewis Jones as defendant. In this complaint she alleged that she was the mother of Yvonne and that Jones was her father. She prayed that the court declare that Yvonne was the child of herself and Jones and that Jones be ordered to support Yvonne. She further prayed for attorney’s fees and for custody of the minor child. Jones answered this complaint denying that he was the father of the child and for want of information and belief denied that the plaintiff Ruth was the mother of the child.

[56]

At the time of answering he also filed a cross-complaint naming as the sole cross-defendant petitioner here. By his cross-complaint he alleged that Ruth was the mother of the child and that the cross-defendant petitioner here was the father of the child and prayed that the court determine that the cross-defendant was the father and that the court make appropriate order compelling the cross-defendant to support the minor. To this cross-complaint the petitioner filed a general demurrer. Upon its being overruled he filed an answer denying the allegations of the cross-complaint as to his paternity.

The trial court will, unless restrained, proceed to the trial of the issues tendered by the cross-complaint and the answer.

We have concluded that the trial court would be acting in excess of its jurisdiction in attempting to try said issues. The complaint of Ruth, insofar as it sought on behalf of the minor to have the existence of the relationship between the minor and Jones declared was based upon section 231 of the Civil Code and insofar as it sought a judgment compelling him to support Yvonne it was based on section 196a of the Civil Code.

Section 231 only authorizes an action to be maintained to declare a relationship

between the parties

Alexander v. Superior Court

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