Taliaferro v. Taliaferro

DRAPER, J.

This action is one of a series arising from the property settlement agreement executed by the parties in 1943. In 1949 an action was filed by plaintiff, the former wife, for amounts alleged to have accrued to her under this agreement. Defendant, the former husband, cross-complained for declaratory relief and for the amount of alleged overpayments and other amounts alleged to be due him. The action was fully tried. The court determined that the agreement, as later modified by the parties, required payment of $275 per month, to he reduced by $75 per month during periods when the daughter who had not yet reached majority should not he with the mother. The judgment fixed the amounts due to plaintiff, allowed certain offsets to defendants, and awarded the net difference to plaintiff. This judgment determined the obligations of the parties as of September 30, 1952. Defendant appealed and the judgment was affirmed.

(Taliaferro

v. Taliaferro, 125 Cal.App.2d 419 [270 P.2d 1036].)

The complaint in the present action is for amounts claimed to have accrued since that determination. Defendant filed an “Answer, Counterclaim and Cross-complaint.” The answer admits execution of the property settlement agreement, hut denies that anything is due under it, and pleads nine “special defenses,” all of which are claims against plaintiff by way of offset. The “counterclaim” sets up four claims against plaintiff, each for an amount in excess of her claim. The “cross-complaint” alleges 10 claims, four of which duplicate the four “counterclaims.” The remaining six seek a declaration of the rights and duties of the parties under the property settlement agreement, and recovery of allegedly excessive payments made thereunder by defendant.

Without filing an answer to the “cross-complaint,” plaintiff moved for summary judgment. This motion was granted as to all hut two of the issues raised by defendant’s pleading. As to these two issues, the case was later tried. Judgment was for plaintiff, and defendant appeals

[498]

The principal question presented is whether the motion for summary judgment was properly filed in the absence of an answer to the “cross-complaint.” The 1957 amendment to section 437c, Code of Civil Procedure (Stats. 1957, ch. 1457), did not become effective until the day following oral argument of this appeal. It is apparent that the section as it stood before this amendment governs here. That section provided for motion for summary judgment in an action only “when an answer is filed.” Respondent suggests that this requires only an answer to the complaint, and not to a cross-complaint. In view of the established rule that the function of the summary judgment procedure is issue finding, rather than issue determination