Syvertson v. Butler

ALLEN, J.

Appeal by defendants Pearl and Meda Mecartney, executrices of the estate of A. Mecartney, deceased,

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from a judgment rendered in favor of defendant Butler, upon a cross-complaint, against defendants appellants. The plaintiff commenced his action against defendant Butler and others, alleging his ownership and seisin in fee of certain described real estate. Defendant Butler answered, disclaiming any interest in the premises set out in the complaint, other than as to a single lot described, as to which she averred ownership and denied that plaintiff had any estate or interest therein. At the time of filing answer, defendant Butler filed a cross-complaint against plaintiff, appellants, and one Carter, administrator of the estate of Butler, deceased. A copy of the cross-complaint was served upon the attorney of plaintiff, and the summons, with a copy of the cross-complaint, upon the other defendants to the cross-complaint. All defendants to the cross-complaint, other than Pearl and Meda Mecartney, the executrices, made default. They demurred to the cross-complaint upon various grounds, among which was that the court had no jurisdiction of the person of said defendants, in that they were not parties to the original complaint, and that it does not appear that their presence is necessary to a complete determination of the controversy arising from the complaint. The demurrer was overruled, and appellants and other defendants to the cross-complaint suffered a default to be entered. The plaintiff in writing stipulated that a decree might go as prayed for in the cross-complaint. Thereupon judgment went for cross-complainant, from which the Meeartneys, as executrices, appeal.

Section 442, Code of Civil Procedure, provides: “Whenever the defendant seeks affirmative relief against any party . . . affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint.” While the court did not formally grant permission to file this cross-complaint, the plaintiff interposed no objection thereto, but, on the contrary, assented to the granting of its prayer; and the action of the court upon the demurrer can only be taken as evidence that the court considered the cross-complaint to be on file with its consent. The only question presented, therefore, is as to the authority of the court in actions