United States National Bank v. Bank of America National Trust & Savings Ass'n

[75]

BISHOP, J. pro tem.

*

Plaintiffs brought this action against The United States National Bank of San Diego, alleging that it had improperly paid a $6,000 cheek and charged it against plaintiffs’ account. The defendant bank filed a cross-complaint in which it named the Bank of America National Trust and Savings Association as the only cross-defendant, praying for a judgment against that bank in the event a judgment should be entered against it (defendant-eross-plaintiff) on plaintiffs’ cause of action. The cross-defendant attacked the cross-complaint by a general demurrer and also by a motion to strike, the latter based, on the ground that the pleading came too late and without leave of court. The lower court looked with favor upon both the motion and the demurrer and entered a judgment not only striking the cross-complaint, but also decreeing that the cross-plaintiff take nothing by reason of it. It is from this judgment that the cross-plaintiff has appealed. The conclusion that we have reached is that the cross-complaint was properly stricken, but that the judgment should not also be based upon the ruling upon the demurrer. We are modifying the judgment to bring it into harmony with our conclusion, and we are affirming it as modified.

The cross-complaint was not filed with the permission either of the code or of the court. On April 7, 1961, defendant National Bank filed its answer to the complaint, beginning with denials, admissions and averments—such as are usual in an answer—and then continuing with four affirmative defenses. A demurrer, directed only to these four affirmative defenses, was sustained on April 28. As to two of them the demurrer was sustained without leave to amend; as to the other two, leave to amend within 20 days was given. The minute entry indicates that notice was waived.

No amendment to the answer was filed within the 20 days, but an amended answer, again with four affirmative defenses, was filed July 13, to which a demurrer was filed. This was allowed to go off calendar and by stipulation a new amended answer was filed August 17. The cross-complaint was filed at the same time, but was not covered by any stipulation.

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