Strauss v. Owens

California Court of Appeal Feb 19, 1957 No. Civ. 5358Published

Before: Griffin

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Holding. The court held that a stranger to an action who was not served and not intended to be a defendant cannot force themselves into the case as a party, and that the trial court did not abuse its discretion in vacating an order that had inadvertently allowed such a party to file a cross-complaint.

Issues

Whether a person not named or served as a defendant in a negligence action may intervene as a matter of right to file a cross-complaint.
Whether the plaintiffs waived their right to object to the appellant's appearance by filing demurrers and answers to the cross-complaint.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Appellant therefore was a stranger to the cause of action and was not entitled, as a matter of right, to appear in it.”

“A complete determination of the controversy between plaintiffs and the defendants sued could be had without the presence of the appellant.”

“No such intentional relinquishment of plaintiff’s right to oppose the filing of a cross-complaint by appellant is here indicated.”

GRIFFIN, J.

On September 10, 1954, plaintiffs brought this action against defendants Annie Owens, John Doe, Jane Doe and Red Company, a corporation, arising out of a collision between a truck being driven by the plaintiff Clayton Strauss and owned by plaintiff American Transfer Company, and an automobile being driven by defendant Annie Owens (hereinafter referred to as defendant).

In the first cause of action it is alleged that the fictitiously named defendants were sued as owners of the motor vehicle being driven by defendant, which would make such defendants responsible for the alleged negligence of defendant Owens in her operation of the vehicle. Under other causes of action they are similarly named, and it is alleged therein that they were principals for defendant and that she was driving as their agent, thus making them liable for her claimed negligence. Only Annie Owens was served with the complaint and summons. On November 16, 1954, she appeared by answer, denied that the motor vehicle being driven by her was owned by the fictitious named defendants but alleged it was owned by one Gladys Porter, deceased. She also denied she was acting as agent of any defendant sued under a fictitious name. The case was set for trial for February 10, 1955, and by stipulation was continued to June 15, 1955.

On May 18, 1955, for the first time, appellant Oad Porter, without service of summons on him, sought to inject himself into said action by filing an answer and alleged that he was sued therein as John Doe. He denied all the allegations of plaintiffs’ complaint but did not purport to identify himself as the owner of the vehicle involved nor as principal for whom defendant Owens may have been driving. In addition, he filed a cross-complaint against plaintiffs and only alleged that he was the father of a 2-year-old child who was riding as a guest with the defendant Owens when the child was killed as the result of plaintiffs’ negligence. He sought damages against plaintiffs in the sum of $50,000. A demurrer to this cross-complaint was interposed by plaintiffs which included a ground that it could not be ascertained therefrom how or in what capacity Oad Porter was supposed to be one of the defendants named in the plaintiffs’ complaint and sued therein as John Doe. Before ruling thereon appellant filed an

[572]

Strauss v. Owens

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GRIFFIN, J.

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