Fox Woodsum Lumber Co. v. Janes

California Court of Appeal Nov 8, 1946 No. Civ. 15317Published

Before: White

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Holding. The court held that while a trial court has the inherent power to dismiss a cross-complaint for want of prosecution, it abused its discretion in this case because the four-month delay in serving process was reasonably accounted for and excused.

Issues

Whether the trial court had jurisdiction to dismiss a cross-complaint for want of prosecution under Code of Civil Procedure section 581a.
Whether the trial court abused its discretion in dismissing the cross-complaint for lack of diligence after a four-month delay in service.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Since section 581a is not applicable to the issuance, service and return of summons upon a cross-complaint, it manifestly follows that it is within the sound discretion of a trial court in the exercise of its inherent power, to dismiss”

“To us it appears that the delay was reasonably accounted for and excused, and that the order of the court did not tend to subserve the ends of substantial justice.”

“Persuaded as we are that the discretion of the court was improperly exercised, the order appealed from is reversed and the cause remanded.”

WHITE, J.

No brief having been filed in behalf of respondent, this cause was ordered submitted pursuant to the provisions of rule 17(b) of the Rules on Appeal, which rule further provides that in such cases the court may accept as true the statement of facts in the appellant’s opening brief.

The following facts appear therein:

By this action filed May 16, 1945, plaintiff seeks to recover on a check in the amount of $4,300 which was executed and delivered by defendant Janes to defendant J. W. Dimmitt, the latter indorsing and delivering the document to plaintiff. Upon presentation thereof to the drawee bank it was dishonored because payment thereon had been stopped by the maker before presentation.

Defendant Dimmitt in his answer filed June 8, 1945, admitted the execution and delivery to him of said check and his subsequent indorsement, but denied any notice of dishonor.

Defendant and appellant Janes in his answer filed June 9, 1945, in addition to denying generally the allegations of the complaint, affirmatively pleaded (1) a conditional delivery of said check to the payee procured by his fraudulent representations, the payee’s breach of said conditions and knowl

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edge of all said facts by plaintiff-indorsee prior to indorsement; (2) want of consideration for said indorsement; (3) failure of consideration passing from payee to maker and a knowledge thereof by indorsee prior to indorsement; and (4) breach by indorsee of his agreement which was a consideration for the indorsement.

In addition to his answer, defendant Janes contemporaneously therewith, on June 9, 1945, filed a cross-complaint for damages against defendant Dimmitt and his copartners individually, and as copartners doing business under the name of Utility Products, wherein it was alleged that the cross-defendants conspired, with the full knowledge of the plaintiff Fox Woodsum Lumber Company, to procure a conditional delivery of said check from defendant Janes by making certain fraudulent representations in order to liquidate a debt due from the said copartnership to plaintiff lumber company, and that the latter took said check by indorsement with full knowledge and notice of said fraudulent representations and conditional delivery.

Fox Woodsum Lumber Co. v. Janes

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WHITE, J.

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