Tuller v. Superior Court

THE COURT.

This is a petition for a writ of mandate to require respondent superior court to set a case for trial or show cause why this has not been done. The merits of the said case are not before us, this proceeding being solely concerned with technical questions of procedure.

Prior to -the present litigation, Edna May Tuller was granted a divorce from Walter K. Tuller, and was awarded the custody of their daughter, Lula May Tuller, petitioner herein. Said daughter on June 9, 1931, being of the age of majority, filed a complaint in the superior court against Walter K. Tuller, her father, seeking support under the provisions of section 206 of the Civil Code, on the theory that she was a “poor person” unable to maintain herself by work. An order to show cause why the defendant should not make provision for her support and counsel fees and costs

pendente lite

was obtained at this time. The defendant demurred to the complaint, mainly on the ground that Edna May Tuller, the mother of plaintiff, was a necessary party defendant and should have been joined. An affidavit was filed in answer to the order to show cause, denying its substantial allegations. On July 21st, the respondent judge of the superior court sustained the demurrer on the above-mentioned ground, giving plaintiff ten days to amend. At that time, the mother was present in court and expressed her willingness to be joined; and counsel for the plaintiff requested the court to make an order joining her as a party defendant by virtue of its powers under section 389 of the

[354]

Code of Civil Procedure. This the court refused to do, declaring that the proper procedure was to file and serve an amended complaint. The plaintiff then moved to enter the default of the defendant. The court denied the motion and placed the order to show cause off calendar. The plaintiff did not amend, but instead applied to the District Court of Appeal, Second Appellate District, Division One, for an alternative writ of mandate to compel the court to set the cause for trial. The application was denied, and upon petition for hearing in this court, an alternative writ was granted. While this proceeding in the appellate court was pending, that is, between the time that the District Court of Appeal denied the application, and the time of filing a petition for rehearing in that court, the superior court, upon request of the defendant, entered judgment in his favor by reason of the failure of plaintiff to amend the complaint within the specified time. This judgment was secured without notice to plaintiff, and her motion to vacate the same was denied. No appeal was taken from the judgment and the time for appeal has passed.