Traweek v. Draper

McMURRAY, J. pro tem.

*

Madeline S. Draper filed a complaint in the Pair Oaks Justice Court, alleging property damage to her automobile in the sum of $189.42, alleged to be the result of a collision between the automobile which she drove with that driven by W. S. Traweek, in which his wife, Laura M. Traweek, was riding. W. S. Traweek and two fictitious defendants were named in that action; he was the only one served. Thereafter, Mr. and Mrs. Traweek filed a pleading in the justice court under the same docket and case number entitled “Answer, Cross-complaint, Complaint,” in the name of W. S. Traweek, John Doe and Jane Doe as “defendants,” W. S. Traweek as “defendant and cross-complainant,” and Laura M. Traweek and W. S. Traweek as “plaintiffs.” The amount sought by this cross-complaint and so-called complaint exceeded the jurisdictional limits of the justice court, and on the same day that this document was

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filed the whole case was certified to the superior court ou that basis. Thereafter, Madeline S. Draper’s “Answer to Cross-complaint and Answer to Complaint” was filed in the justice court and was forwarded to the superior court. Subsequently, pursuant to stipulation there was filed in the superior court Madeline S. Draper’s “Amended Answer to Complaint,” and counsel for both parties also entered into a written stipulation permitting the amendment of the Traweeks’ complaint as to its prayer for damages.

On the morning the action was called for trial in the superior court it was for the first time called to the attention of the parties that the record of the ease failed to show any order of court, stipulation, or other evidence in the file permitting Laura M. Traweek to become a party to the action. Appellant immediately orally moved the court to strike the complaint of Laura M. Traweek and W. S. Traweek from the record and to dismiss Mrs. Traweek from the action. The court postponed ruling on this motion at that time and made an order taking the case off the trial calendar and placing it on the law and motion calendar. Appellant filed a formal written motion to strike out or to dismiss the pleading of Laura M. Traweek. This motion was denied, and the case was reset and tried before a jury. At the time of trial the court announced that it would consider and assume that the Traweeks were the plaintiffs and that Madeline S. Draper was the defendant. A jury subsequently returned a verdict awarding $1,050 damages in favor of W. S. Traweek and $10,000 in favor of Laura M. Traweek.