Brady v. Kobey

California Court of Appeal Jul 11, 1938 No. Civ. 11767Published

Before: McCOMB

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Holding. The court held that a cross-complaint attempting to bring in new parties is invalid without a valid court order, and that a justice of the peace lacks jurisdiction to permit such a filing when a counterclaim exceeds the court's jurisdictional limit.

Issues

In the absence of an order of the court permitting the filing thereof is a cross-complaint valid which brings into the action new parties?
Did the justice of the peace have jurisdiction to make the order set forth above which purported to permit the filing of the cross-complaint?

Disposition. affirmed

Quotations verified verbatim against the opinion

“He cannot bring a new party into the action without an order of the court therefor.”

“The requirements of this section are mandatory and orders of a justice's court not in conformity therewith are without jurisdiction and void.”

“It is thus evident that the purported order of the justice of the peace of November 6, 1936, permitting the filing of the cross-complaint was void”

McCOMB, J.

These are purported appeals from orders granting (1) the motion of respondents Sansum Clinic, W. D. Sansum, R. A. Hare, D. IT. McNamara, H. I. Burtness, Alfred E. Koehler, B. S. Wyckoif, and Ruth Bowden, to strike out a cross-complaint filed in the above-entitled action; and (2) the motion of respondent Santa Barbara Cottage Hospital to strike from the cross-complaint references to its corespondents.

The essential facts are:

September 24, 1936, Aileen Brady as assignee of Dr. Find-lay filed an action in the Justice Court of the Second Judicial Township, County of Santa Barbara, California, to recover a sum alleged to be due for medical services rendered the father of appellants. November 6, 1936, appellant Marvin D. Kobey filed an answer in the justice court denying the allegations of the complaint and also a counterclaim in which he alleged that Dr. Findlay had so negligently performed an operation upon his father that as a result thereof his father died. A recovery of $20,000 was sought on the alleged counterclaim. Appellants filed a cross-complaint against Aileen Brady and respondents alleging negligence of the respondents resulting in the death of appellants’ father.

There was also filed with the purported cross-complaint a document reading as follows:

“In the Justice’s Court of the Second Judicial Township, County of Santa Barbara, State of California.

“Aileen Brady, plaintiff and cross-defendant, vs. Marvin D. Kobey, defendant and cross-complainant, and John Doe Kobey, defendant.

“Marvin D. Kobey, Doris E. Horn, Thelma F. Kobey and Cyril H. Kobey, cross-complainants, vs. Aileen Brady, Francis M. Findlay, Santa Barbara Cottage Hospital, a corporation; Sansum Clinic, W. D. Sansum, P. A. Gray, R. A. Hare, D. H. McNamara, H. I. Burtness, Alfred E. Koehler, J. H. Childrey, B. S. Wyckoff, Ruth Bowden, Doe One, Doe Two, cross-defendants.

[507]

“ORDER

“Good cause therefor being shown, it is hereby ordered that the cross-complaint of Marvin D. Kobey et al. vs. Francis N. Findlay et al. may be filed in this action and that summons may issue thereon.

Brady v. Kobey

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