10 P.2d 43 | Cal. | 1932
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
The original complaint of petitioner against the defendant Tuller contained allegations supported by affidavits of several doctors, to the effect that she was in danger of tuberculosis and was in immediate need of medical attention. It was for this reason, counsel for petitioner say, that relief was sought by application for mandamus to the appellate court. They assert further that the procedure of filing and serving an amended complaint would have resulted in great delay in view of the congested calendar; and that an appeal from a judgment in the action would have been a slow and consequently an inadequate remedy.
[1] Passing for the moment the question of the propriety ofmandamus as a remedy under these circumstances, we think it is clear that the lower court was in error in making the orders complained of. Section
[2] The demurrer should unquestionably have been overruled, and the order sustaining it was palpably erroneous. It was still less proper for the court to refuse to permit the bringing in of the mother at the time of the hearing, when she was present and expressed her willingness to become a party. The power to bring in parties who are necessary to a determination of the cause is, under section 389 of the Code of Civil Procedure, not wholly discretionary. Inasmuch as the court, in sustaining the demurrer, concluded that the mother was a necessary party, it necessarily follows that it should have permitted the joinder at that time. No possible reason save excessive legal formalism could demand that plaintiff be forced, in effect, to start her action anew; and the only purpose to be served would be delay. No discretion resided in the court in this state of the record. We said inAmbassador Petroleum Co. v. Superior Court,
[3] A plain showing of error below is thus presented, first in sustaining the demurrer, and second in refusing to *356 permit what in effect was the carrying out of the court's own order — the joinder of the mother as a defendant. The difficult questions are whether the petitioner has chosen a valid method of securing relief, and whether at this time such relief may properly be granted. It is contended that it is not possible to grant the writ because judgment has been entered in the action, and no appeal has been taken from it. We have reached the conclusion that this contention is sound. It appears that the application to the District Court of Appeal was denied on July 30, 1931. The judgment was signed by the judge of the superior court on August 1, 1931, and entered on August 5, 1931. During all this time, the superior court had jurisdiction to act. Counsel for petitioner have staked their entire case on the application to the District Court of Appeal for an alternative writ of mandate. They have failed to amend the original complaint, and thus have permitted the trial court to render judgment by default. They have not appealed from this judgment. They now ask this court to order a cause set for trial, in spite of the rendition of judgment therein by a court having jurisdiction thereof, which judgment is now final. We think this is beyond our powers.
[4] Petitioner, however, is not debarred from further prosecution of her claims. The effect of the technical maneuvers of counsel for defendant Tuller and the failure of counsel for petitioner to pursue the appropriate remedies provided by statute has been to delay, for a regrettably long period, a trial of the action. Nevertheless, the right of petitioner to file a new action has not been impaired by the judgment entered in this one. It is too plain to require discussion that said judgment was not rendered on the merits, and is consequently not res judicata on any of the issues. (See generally, 2 Freeman on Judgments, sec. 744, p. 1566 et seq.)
The writ is denied.
Shenk, J., and Seawell, J., concurred in the order denying the writ.
Rehearing denied. *357