Milstein v. Turner

HANSON, J. pro tem.

In this case there are two separate appeals, one by the defendant Fred Turner, Jr., and his wife from a judgment in ejectment rendered in favor of the plaintiff Milstein (the respondent on appeal), and the other an appeal by Fred Turner, Sr. (the father of Fred Turner, Jr.) who while not named as a party defendant in the case endeavored to assume that role (after the case had been tried and submitted to the court for decision), by the simple expedient of filing an answer in the case, without leave of court and indeed without notice to the plaintiff. On motion of the latter the court struck the answer of Turner, Sr., from the files. His appeal is from the order thus made, and from an order denying his motion to set aside said order.

The appeal of appellant Fred Turner, Sr., requires no statement of the facts upon which he rests his appeal. It is enough to say that if he were possessed of a most meritorious ease against the plaintiff he was not entitled to inject that case into a case instituted by the plaintiff Milstein against his son by the simple device of filing an answer in it. The order of the trial court striking the answer of Turner, Sr., was correct.

(Mercantile T. Co.

v.

Stockton etc. Co.,

44 Cal.App. 558 [186 P. 1049];

Lester

v.

Beer,

74 Cal.App.2d Supp.

[186]

984 [168 P.2d

998]; Liera

v.

Los Angeles Finance Co.,

99 Cal.App.2d 254 [221 P.2d 737].)

The appeal of Fred Turner, Jr., and his wife, which we alone discuss from this point on, requires but a brief statement of the facts to demonstrate that there is likewise no merit in their appeal.

The plaintiff Milstein instituted an action in 1947 against Turner, Sr., to quiet title to the land here involved basing his right thereto upon a sheriff’s deed issued to-him pursuant to an execution which had been issued upon a personal judgment against Turner, Sr. In that action Turner, Sr., answered setting up various defenses none of which included a claim of a superior or indeed any homestead right against the plaintiff’s claim of title in that action. The decree in that case adjudged that title to the property was vested absolutely in the plaintiff with a right of immediate possession thereto. Upon an appeal by Turner, Sr., the judgment was affirmed by this division of the court. (89 Cal.App.2d 296 [200 P.2d 799].)