Brooks v. White

ALLEN, P. J.

An action to determine conflicting claims to real property, as authorized by section 738 of the Code of Civil Procedure, was instituted by plaintiff against defendants. Defendant Martha S. White filed an answer in due time denying the averments of the complaint, alleging ownership and possession of the premises involved, and asking

[720]

for affirmative relief in that she be adjudged the owner of the premises and that plaintiff be enjoined from asserting any claim .thereto. At the same time she filed a pleading denominated a cross-complaint, alleging ownership and possession of the premises described in the complaint precisely as in the answer, and praying for the same affirmative relief as in the answer demanded. Service of this cross-complaint was admitted by attorneys, and plaintiff not answering the same within ten days, the clerk entered plaintiff’s default, and the court, on December 5, 1910, rendered a judgment and decree as prayed for in the cross-complaint, which judgment was on the same day entered in the judgment book. On December 12th plaintiff gave notice of an intention to move for an order vacating the judgment and default because of the want of authority of the clerk to enter such default, and because of mistake, inadvertence, and excusable neglect on plaintiff’s part in failing to answer such cross-complaint. This was supported by proper affidavits. This motion the court denied, and from such order made after judgment plaintiff appealed.

The only question presented upon this appeal relates to the effect which should be given the pleading denominated “cross-complaint” filed in an action of the character shown and under the circumstances presented by the record. For many years it was established in this state that in actions under section 738 of the Code of Civil Procedure a cross-complaint was unnecessary for the reason that full relief could be granted defendant upon the denials and averments of the answer. An exception to this rule was observed in

Winter

v.

McMillan,

87 Cal. 256, [22 Am. St. Rep. 243, 25 Pac. 407], where additional parties were necessary in' order that full affirmative relief might be awarded defendants, and to permit new and additional matters to be set out necessary for a full and complete determination of the rights of the parties. Subsequently, in