Johnson v. Risdon

PARKER, J., pro tem.

Plaintiff’s action was in ejectment, seeking also damages for the retention of the premises. Defendants answered and also filed their cross-complaint. In this cross-complaint it was alleged that the husband

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of plaintiff, one Alvah M. Johnson, had by a series of fraudulent acts induced defendants to purchase the property involved in the present action along with other properties not affected by this particular litigation. The cross-complaint, among other things, alleged that the property involved here was acquired by plaintiff as the result of a sale under a trust deed; that the obligation supporting the trust deed was a promissory note executed by defendants to Alvah M. Johnson and by him fraudulently procured. The defendants in the said cross-complaint alleged further that the note and the security had been assigned to plaintiff Catherine Johnson without consideration, and the prayer was for the cancellation of the note and trust deed and of the assignment thereof to plaintiff Catherine Johnson. In the same cross-complaint it was alleged that in another transaction (setting forth the details thereof) Alvah M. Johnson had defrauded the defendants Risdon to the extent of $25,275, and judgment against Alvah M. Johnson for that amount was prayed.

The plaintiff Catherine Johnson for herself alone filed her answer to the said cross-complaint, specifically denying all of the allegations therein contained.

The cross-complaint was directed against plaintiff Catherine M. Johnson and Alvah M. Johnson, the latter not being a party to the action. No leave of court was obtained granting permission to file the cross-complaint, and no summons was ever issued thereon nor does it appear that the same was ever served on Alvah M. Johnson.

At the commencement of the trial in the court below defendants Risdon objected to the trial proceeding on the ground that the case was not at issue, inasmuch as Alvah M. Johnson had not appeared, and the trial court overruled the objection and proceeded with the hearing. This action of the court below presents the first point on the appeal.

We find no error in the court’s action. No order was ever sought making Alvah M. Johnson a party to the action, and, as indicated, no service of any kind was ever made upon him. Some two months had elapsed from the filing of the cross-complaint until the date of the trial, and the plaintiff was entitled to have her issues determined. In any event the presence of Alvah M. Johnson was not necessary