Schlake v. MacConnell

California Court of Appeal Oct 15, 1924 No. Civ. No. 4950.Published

Before: Langdon

AI Brief

AI-generated · verify before citing

Holding. The court held that the appellants were not parties to the action and had no standing to file a cross-complaint, as the original complaint had been superseded by an amended complaint that omitted them as defendants. Consequently, the trial court properly struck the unauthorized pleading and set aside the default entered against the plaintiff.

Issues

Whether the appellants had standing to file a cross-complaint after being omitted from the amended complaint.
Whether the trial court properly struck the cross-complaint and set aside the default entered against the plaintiff.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The filing of an amended complaint, omitting a defendant named in the original complaint, operates as a dismissal of the action as to such defendant.”

“at the time defendant attempted to file its purported answer and cross-complaint it was not a party to the action and had no right to file the same.”

“the same was properly stricken from the files when called to the attention of the court.”

LANGDON, P. J.

The Consolidated Concessions Company, a defunct corporation, and its trustees, have appealed from two orders of the trial court, one of which set aside the default of plaintiff to a so-called cross-complaint filed iby said appellants and the other order struck from the files the said cross-complaint. The respondent has moved to dismiss this appeal upon the ground that the appellants have no standing in the action, as it was dismissed as to them prior to the filing of the purported answer and cross-complaint and their petition to intervene in said action was denied by the trial court, which order has become final.

In August, 1915, the plaintiff commenced an action against Emmett MacConnell and Consolidated Concessions Company for rescission of a contract made by him for the purchase of certain stock of said company, and the cancellation of deeds to certain real property, which property he had transferred to MacConnell as the purchase price of said stock. The Consolidated Concessions Company was not served with summons. MacConnell was regularly served with summons and failing to answer in time, his default was entered. On February 8, 1917, a default judgment was rendered against MacConnell and the judgment recited: “It is further ordered, adjudged and decreed that the said action be and the same is hereby dismissed as to the defendant Consolidated Concessions Company.”

Subsequently, on June 11, 1917, it was duly and regularly ordered that the judgment against MacConnell be set aside and he was granted thirty days within which to plead. In the meantime there was a motion for a change of venue made by MacConnell and the action was transferred from the county of Sonoma to the county of Alameda. On January 17, 1920, the plaintiff filed his amended complaint. This amended complaint did not make the Consolidated Gonces

[209]

sions Company a defendant. A trial was had, resulting in a decision for plaintiff against MaeConnell. On February 23, 1923, a hearing being had upon the settlement of findings to be made in said action, the attorney for MaeConnell requested the court to permit the trustees of the Consolidated Concessions Company, which had forfeited its charter by reason of its failure to pay the state license tax, to intervene in the action, which request was denied.

Schlake v. MacConnell

AI Brief

LANGDON, P. J.

More from California Court of Appeal

Related research

AI Brief