Mishkind v. Superior Court

BARNARD, P. J. The petitioner, as plaintiff, brought an action in a Class A justice’s court against the Bank of America. The action was based on the claim that the plaintiff had drawn a check on a Fresno branch of this bank in favor of one W. D. Brown, a resident of San Francisco; that she gave this branch of the bank a written notice stopping payment of this check; that thereafter, in violation of the stop-payment notice, the defendant bank paid the amount of the check to W. D. Brown and charged the plaintiff’s account therewith; and that by reason of the negligence and carelessness of the defendant bank the plaintiff has been damaged in the amount of $1,000.

The bank answered and after a trial a judgment was entered on July 19, 1946, in favor of the plaintiff for $1,000. On August 13, 1946, the bank gave notice of appeal to the Superior Court of Fresno County, on questions of both law and fact, and a transcript was filed in that court on August 17, 1946. In February, 1947, with the permission of the court, the bank filed a cross-complaint naming Brown as cross-defendant and asking judgment against him, in the event judgment was rendered against it in the main action. Brown answered this cross-complaint and also filed another cross-complaint naming the bank and the petitioner herein as cross-defendants. In this cross-complaint he prayed that in the event he was held liable to the bank upon its cross-complaint the bank be ordered to deliver to him a certain promissory note, and that he have judgment against this petitioner, who is alleged to have signed the note, for the sum of $1,000.

On June 3, 1947, the bank answered Brown’s cross-complaint and on the same day this petitioner filed a demurrer to that cross-complaint. On June 23, this demurrer was overruled with permission given to this petitioner to amend within 10 days. On June 26, the attorney for Brown wrote to the attorney for this petitioner stating that he desired to amend this cross-complaint, asking him not to file an answer until the amended cross-complaint was filed, and promising not to take or permit any default to be entered. The attorney for the petitioner agreed to this in writing and their letters constitute a stipulation to this effect.

On July 7,1947, at the request of the attorneys for the bank, without notice, without the taking of any evidence, and without the knowledge or consent of Brown or of this petitioner, the court entered the default of this petitioner on Brown’s cross-complaint and entered a judgment on that cross-complaint in [362]