Aten v. Aten

BARNARD, P. J.

On May 16, 1935, the parties hereto, who were husband and wife, entered into a written property settlement agreement by the terms of which each was given certain property and the defendant agreed to pay to the plaintiff $100 a month during her lifetime, or until her remarriage.

On August 1, 1942, the plaintiff wife brought this action to cancel and set aside this agreement on the ground that her signature thereto had been obtained through fraudulent representations made by the defendant, and seeking a restoration of her interest in certain described community property. Second and third counts of the complaint added failure of consideration and declaratory relief as causes of action. The defendant filed an answer and cross-complaint pleading a denial, the statute of limitations and estoppel and alleging, among other things, that he had fully performed the terms

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of the agreement and for eight years had conducted his business in reliance thereon, that the plaintiff had for years accepted the monthly payments and had ratified the contract, and that he was the sole owner of the property involved. The prayer was that the plaintiff take nothing by her complaint; that it be decreed that the property settlement agreement is valid and binding between the parties; that it be decreed that the plaintiff had no right, title or interest in or to any of the properties of the defendant, real or personal, and no property rights as to him other than as set forth in that contract ; and for general relief. The plaintiff answered this cross-complaint.

The trial of the action was set for September 13, 1943, and was continued to January 10, 1944. At that time counsel for the plaintiff moved for a further continuance. When this motion was denied counsel attempted to dismiss the action and objected to the court’s proceeding with it, but asked for findings in the event judgment was to be entered. The court overruled this objection. Subsequently, findings were made arid a judgment entered, and this appeal followed.

The appellant’s sole contention is that no affirmative relief, within the meaning of paragraph 1 of section 581 of the Code of Civil Procedure, was sought in the answer or cross-complaint and that it was, therefore, the duty of the trial court to dismiss the action in response to her request. She relies upon a number of cases involving the sufficiency of counterclaims and other early cases in which it was held that a cross-complaint was unnecessary in a quiet title action since a judgment entered upon issues raised by the answer, if in favor of the defendant, would operate as an estoppel and protect him as well as a decree in his favor upon a cross-complaint. It is argued that the respondent could not have maintained an action against the appellant, that there was no controversy between them until the appellant raised the issue of the validity of the agreement by bringing this action, that the respondent asked for nothing either in his answer or cross-complaint which he would not have received upon a denial of relief to the appellant, and that it follows that no affirmative relief was here asked for by the respondent, within the meaning of the statute.