Coburg Oil Co. v. Russell

California Court of Appeal Nov 26, 1954 No. Civ. 17718Published

Before: Shinn

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Holding. The court denied the motion to recall or correct the remittitur, holding that the trial court had jurisdiction to strike the defendant's answer and cross-complaint because the defendant had been dismissed from the action and was a stranger to the proceedings.

Issues

Whether the trial court acted in excess of its jurisdiction in striking the defendant's answer and cross-complaint.
Whether the appellate court lacked jurisdiction to affirm the order striking the defendant's pleadings.

Disposition. denied

Quotations verified verbatim against the opinion

“The motion to recall or correct remittitur is denied.”

“Presumably one of the reasons for denial of the motions was that by virtue of the dismissal of the action as to Stafford he became and remained a stranger to the action.”

“Irrespective of the efficacy of the judgment as to Stafford or as to those defendants against whom it ran, the trial court undoubtedly had jurisdiction to strike out Stafford’s answer and cross-complaint.”

SHINN, P. J.

Guy N. Stafford has moved the court to recall and correct the remittitur issued out of this court in

Coburg Oil Co.

Russell; Guy N. Stafford, defendant and appellant,

Civil No. 17718, reported in 100 Cal.App.2d 200 [223 P.2d 305]. The transactions out of which the present action arose have been the subject of extended litigation, phases of which were considered on appeal in

Stafford

Russell,

117 Cal.App.2d 319 [255 P.2d 872], and

Sanders

Howard Park Co.,

86 Cal.App.2d 721 [195 P.2d 898].

Coburg,

this court affirmed an order striking out an answer and a cross-complaint of Guy N. Stafford in an action instituted by Coburg. The following material facts were before the court on that appeal and are for consideration on the present motion: Coburg (formerly Petroleum Development Company) brought an action, the ultimate purpose of which was to establish that it was the owner of a valid oil

[215]

lease executed in 1924 covering certain lots in a tract known as Athens in Los Angeles County. Stafford, as owner of five of the lots in question, was named as a defendant. He filed an answer and a cross-complaint. By stipulation the answer was withdrawn, the cross-complaint was dismissed, Stafford’s default was entered and by direction of plaintiff’s attorneys the action was dismissed as to him. The action was tried as to the remaining defendants and was decided in their favor. The judgment did not run against Stafford. There was no effective appeal from the judgment. Some two years later, upon the written consent of the attorneys for plaintiff and without order of court, Stafford filed another answer and a cross-complaint. These were stricken out on motion. Stafford appealed from this order. He contended that the action had not been dismissed as to him, that the judgment was void in that he was an indispensable party to the action and that the action was still pending. For these reasons he claimed it was error to strike out his answer and his cross-complaint. Upon this motion to recall the remittitur, he makes the same contentions.

Coburg Oil Co. v. Russell

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SHINN, P. J.

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