Argus Enterprises, Inc. v. Calmy

CONREY, P. J.

This is an appeal by the plaintiff from a judgment rendered against it upon a cause of action stated in the cross-complaint of the defendants. The sole ground for reversal now urged on behalf of the plaintiff is that the court erred in overruling plaintiff’s demurrer to the amended cross-complaint. The argument rests upon that part of the demurrer which alleged that said amended cross-complaint “does not contain facts sufficient to constitute a cause of action.’’’ It is not claimed that said cross-complaint did not state a cause of action except in this, that the case presented by the cross-complaint is in no manner related to the subject matter of the plaintiff’s action, and therefore that the cross-action does not lie in this case.

For the purposes of this decision we shall assume that, as against objections properly urged, the right of the defendants to proceed by cross-complaint should have been denied. But, upon the record now before us we think that this objection really appears for the first time on this appeal from the judgment.

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Although it does not appear that the supreme court has ever directly stated that a general demurrer to a cross-complaint upon the ground that it does not state facts sufficient to constitute a cause of action is sufficient to raise the question of the right to file the cross-complaint, yet it does appear that a number of eases have been decided upon the assumption that the question could be so raised. In three cases judgments were reversed directly upon the ground

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that the demurrer had been improperly overruled where the case presented by the cross-complaint was not a proper case for cross-complaint.

(Demartin

v.

Albert,

68 Cal. 277 [9 Pac. 157];

Silver Creek etc. Co.

v.

Hayes,

113 Cal. 142 [45 Pac. 191];