Mason v. Day

DUNIWAY, J.

The appeal in this action is from an order that is not appealable.

Plaintiff Mason sued defendant Day for damages resulting from a collision between a Greyhound bus driven by Mason and an automobile driven by Day. Thereafter, Day filed two separate pleadings on the same day, one an answer and the other a cross-complaint against Mason and Pacific Greyhound Lines, Inc. The cross-complaint was served upon Mason, but not upon Pacific Greyhound, which has never appeared in the action. Subsequently, Mason moved to strike the cross-complaint, and that motion was granted. The appeal is from that order.

Since Pacific Greyhound has not been served, and has not appeared, the order can have validity only as between the parties who were before the court — namely, plaintiff and cross-defendant Mason, and defendant and cross-complainant Day. This being the situation, the order striking the cross-complaint is not appealable. No such order is listed in Code of Civil Procedure, section 963, and it cannot be treated as a final

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judgment because it did not dispose of the litigation between those parties.

(Yandell

v.

City of Los Angeles,

214 Cal. 234 [4 P.2d 947] ;

Merchants’ Nat. Bank

v.

Clark-Parker Co.,

97 Cal.App. 757 [276 P. 387];

Sjoberg

v.

Hastorf,

33 Cal.2d 116 [199 P.2d 668].)

Appellant argues that the order did finally dispose of the litigation as between Day and Pacific Greyhound, and is therefore appealable, under the rule in

Howe

v.