Douglas v. Douglas

• Decision Date: 16 October 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin S. DOUGLAS, Plaintiff, Cross-Defendant and Respondent, v. Fay H. DOUGLAS, Defendant, Cross-Complainant and Appellant. Civ. 22799.

Page 655

330 P.2d 655

164 Cal.App.2d 225

Edwin S. DOUGLAS, Plaintiff, Cross-Defendant and Respondent, v. Fay H. DOUGLAS, Defendant, Cross-Complainant and Appellant.

Civ. 22799.

District Court of Appeal, Second District, Division 1, California.

Oct. 16, 1958.

Hearing Denied Dec. 10, 1958.

Jerrell Babb, Los Angeles, for appellant.

Bonpane & Dillon and Manuel Ruiz, Jr., Los Angeles, for respondent.

WHITE, Presiding Justice.

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. 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, 286), 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, supra, 94 Cal.App.2d at pages 398, 399, 210 P.2d at page 854) 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.

On July 20, 1956, appellant, on the basis of her affidavit, secured an ex parte judgment and a writ of execution against respondent to collect the amount of $15,000, plus interest of $2,699.86, which appellant contended was due and owing on the aforesaid pendente lite order made by the court October 30, 1944 for her support on her separate maintenance cross-complaint, said amount being claimed for the five years preceding the filing of her request for said ex parte judgment and writ of execution on July 20, 1956, viz., from July 20, 1951 to July 20, 1956.

On August 20, 1956, respondent filed a motion to vacate and set aside the aforesaid ex parte judgment of July 20, 1956. The motion was based on the ground (1) that the dismissal of the cross-complaint in 1949 carried down with it all prior orders for support pendente lite and (2) that the valid decree of divorce granted to respondent in Nevada on June 10, 1949, against which there had been no successful attack, barred appellant from collecting payments, pendente lite, from and after said date of June 10, 1949, and (3) that additionally appellant abandoned this present action when she filed a new action in January, 1951 alleging the same grounds for separate maintenance as in this present action.

On August 20, 1956, respondent also filed a motion for entry of dismissal nunc pro tunc of appellant's aforesaid supplemental cross-complaint. This motion was grounded upon the claim that respondent was entitled to such order of dismissal under the holding of the District Court of Appeal in Douglas v. Superior Court, supra (94 Cal.App.2d 395, 210 P.2d 853), prohibiting any further proceedings upon said supplemental cross-complaint against the petitioners in the case just cited for the reason that the filing of the supplemental cross-complaint did not have the effect of extending the time of mandatory dismissal to five years after its filing.

On March 5, 1957, the trial court made its order granting both motions. From such order appellant prosecutes this appealable.

Appellant first contends that the court erred in dismissing nunc pro tunc her supplemental cross-complaint, since that remedy was...