Douglas v. Douglas

WHITE, P. J. Respondent is the plaintiff and cross-defendant in an action for divorce commenced by him in April, 1944, in the Superior Court of Los Angeles County.

On June 1, 1944, his wife, appellant herein, filed an answer and cross-complaint in which she named as cross-defendants respondent and his son, Edwin S. Douglas, Jr.

On October 30, 1944, the aforesaid court made and entered an order requiring respondent to pay appellant as defendant and cross-complainant, the sum of $250 per month as alimony pendente lite.

On March 21, 1946, appellant, as cross-complainant, filed what she entitled a supplemental cross-complaint naming as cross-defendants one Grace Kunkle, Telegraphic Delivery Service, a corporation, Edwin S. Douglas, Jr., and respondent.

On July 5, 1949, the trial court, on its own motion, dismissed respondent’s action pursuant to the provisions of section 583 of the Code of Civil Procedure.

On July 7, 1949, the same court dismissed the cross-complaint, but denied respondent’s motion to dismiss cross-complainant’s action and proceeded to try the case upon the supplemental cross-complaint.

After the cause was submitted a mistrial was declared. [227]Thereupon, the cross-defendants therein, other than the respondent herein, applied to the District Court of Appeal for a writ of prohibition to restrain the superior court from taking any further proceedings against them, contending that the lower court was without jurisdiction and had abused its discretion in denying their motion to dismiss the action.

On November 2, 1949, the District Court of Appeal granted a peremptory writ of prohibition (Douglas v. Superior Court, 94 Cal.App.2d 395 [210 P.2d 853]). The writ that issued so far as pertinent here, reads as follows: “. . . , we do command you . . . that you absolutely desist and refrain from taking any further proceedings against, or making any orders affecting petitioners herein in the above entitled proceedings ...” (Emphasis added.) In a subsequent decision involving a petition for a writ of prohibition (Douglas v. Superior Court, 143 Cal.App.2d 17, 18 [299 P.2d 285]), the District Court of Appeal noted that “No order has been made dismissing the supplemental cross-complaint although undoubtedly petitioner (respondent herein) is entitled to have it dismissed.” This statement finds substance in the language of the court in granting the aforesaid writ of prohibition (Douglas v. Superior Court, 94 Cal.App.2d supra, pp. 398, 399) wherein it is said that the mandatory provision for dismissal after the lapse of the statutory time without proceeding to trial, as well as the decisions therein cited that said period is not extended by the filing of an amended or supplementary complaint, “are equally applicable to the filing of an amended or supplemental cross-complaint ’ ’ as in the instant action, and require that the cross-action be dismissed upon the lapse of the statutory time after the filing of the original cross-complaint.