Wettstein v. Cameto

PETERS, J.

Plaintiffs appeal from the order denying their motion to set aside a default and default judgment entered in favor of defendant on her cross-complaint after plaintiffs had failed to file an answer to the cross-complaint. Plaintiffs contend that the challenged pleading was, in fact, a counterclaim, and correctly point out that no answer need he filed to a counterclaim. Based on this premise, it is urged that the trial court was without jurisdiction to enter the default judgment, and that such judgment was, therefore, void, It is our opinion that where a pleading, as here, qualifies as both a counterclaim and a cross-complaint it should be classified as one or the other in such manner as

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best serves the interests of justice. In the instant case the determination of the trial court that the interests of justice require that the pleading be treated as a cross-complaint is not only supported but almost compelled by the record.

The facts giving rise to this controversy are as follows: In response to a complaint for money had and received in the amount of $5,000, defendant filed and served, on January 18, 1960, a pleading labeled “Answer and Cross-Complaint.” After denials, it stated, “And for a further, separate and distinct answer to plaintiffs’ complaint and by way of cross-complaint, defendant Anna Gameto complains of plaintiffs and alleges” a cause of action arising out of plaintiffs’ claimed breach of a lease. It was alleged that plaintiffs leased a foundry from defendant for a five-year term, that plaintiffs had deposited $5,000 as security for performance and for any damage beyond reasonable wear and tear, and that plaintiffs had failed to maintain the premises and personalty thereon. Defendant sought recovery of sums expended for repairs and restoration, loss of rental, and attorney fees, less the $5,000 deposit which was the subject of the complaint. On numerous occasions, in person, by telephone and by letter, defendant’s counsel requested the then counsel for plaintiffs to file an answer to the cross-complaint. Plaintiffs’ counsel promised to do so, but the answer was never filed. Counsel for both parties at all times referred to and considered the pleading as a cross-complaint. On June 29, 1961, a year and a half after the answer and cross-complaint was filed, plaintiffs’ default was entered. On July 12, 1962, yet another year later, default judgment was entered, after defendant presented proof to the court. Judgment was in the amount of $10,290.35 damages, less the $5,000 deposit, with attorney fees and costs. A writ of execution was issued on August 24, 1962, and was returned fully satisfied. Thereafter, plaintiffs retained different counsel. On November 28, 1962, 17 months after entry of default and 3 months after the judgment had been fully satisfied, plaintiffs moved to set aside the default and judgment, on the ground that they were void. The motion was denied, as was plaintiffs’ subsequent motion to vacate the order of denial.