Fried v. Municipal Court of City of Los Angeles

Decision Date02 November 1949
Citation94 Cal.App.2d 376,210 P.2d 883
Parties. Civ. 17233. District Court of Appeal, Second District, Division 2, California
CourtCalifornia Court of Appeals Court of Appeals

Geo. P. Cook, Glendale, for appellant.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents.

WILSON, Justice.

Appeal from judgment dismissing a petition for writ of mandate.

Petitioner brought an action in the municipal court of Los Angeles on a written contract signed by Mae Christian for the purchase of household furniture. Two persons were named as defendants under fictitious names. Defendant Christian failed to answer, whereupon a judgment by defeault was entered against her for the balance due on the contract, together with attorney's fees.

Thereafter petitioner, plaintiff in the municipal court action, filed an affidavit with the clerk pursuant to SECTION 989 OF THE CODE OF CIVIL PROCEDURE1 against one Neceph O. Fhren, purported to have been sued under the fictitious name of John Doe. A summons was issued against him in the so-called joint debtor proceeding. Upon his failure to respond to the summons his default was entered by the clerk. The plaintiff then applied for a judgment against Fhren pursuant to sections 989 to 994 of the Code of Civil Procedure. The clerk refused to enter judgment against him and upon application to the presiding judge of the court he likewise refused. The parties to this proceeding agree that the reason for the refusal was that Fhren did not sign the contract upon which the action was brought.

Petitioner than commenced the instant proceeding in the superior court praying for a writ of mandate directing the municipal court and its clerk to enter judgment by default against Fhren. A demurrer to the amended petition was sustained without leave to amend and judgment was entered dismissing the proceedings, from which this appeal comes.

A judgment against a joint debtor must be based upon the same cause of action as that on which the judgment was entered. In a joint debtor proceeding the complaint must be examined for the purpose of determining the obligation on which the original judgment was entered. The entire proceeding is statutory and exclusive and is in the nature of an action on the judgment. Cooper v. Burch, 140 Cal. 548, 551, 74 P. 37.

If the complaint does not state a cause of action against the alleged joint debtor a judgment cannot be entered against him. An objection to the sufficiency of the complaint to state a cause of action may be taken at any stage of the case. Code Civ.Proc. sec. 434; Bell v. Thompson, 147 Cal. 689, 694, 82 P. 327; Shahabian v. Najarian, 14 Cal.App.2d 435, 440, 58 P.2d 396.

The complaint in the municipal court action did not state a cause of action against Fhren, the alleged joint debtor. The allegation is that Mae Christian entered into a written conditional sales contract for household furniture at an agreed price 'which said sum said defendants agreed to pay.' There is no allegation that Fhren or any fictitiously named person was a party to the contract or that any person...

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8 cases
  • Meller & Snyder v. R & T Properties, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • April 7, 1998
    ...899, 906, 910, fn. 7, 106 Cal.Rptr. 733; McRae v. Bates (1961) 196 Cal.App.2d 510, 512-513, 16 Cal.Rptr. 565; Fried v. Municipal Court (1949) 94 Cal.App.2d 376, 378, 210 P.2d 883; Melander v. Western Nat. Bank (1913) 21 Cal.App. 462, 478-479, 132 P. 265.) The procedure is set forth in Code ......
  • Vincent v. Grayson
    • United States
    • California Court of Appeals Court of Appeals
    • February 27, 1973
    ...not served with process for the limited purpose of enforcing the judgment. (See Code Civ.Proc. § 989 et seq.; Fried v. Municipal Court, 94 Cal.App.2d 376, 210 P.2d 883; McRae v. Bates, 196 Cal.App.2d 510, 16 Cal.Rptr. 565.) Respondent complied with the requirements of Code of Civil Procedur......
  • Jonson v. Weinstein
    • United States
    • California Court of Appeals Court of Appeals
    • April 5, 1967
    ...any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; * * *.'2 Fried v. Municipal Court, 94 Cal.App.2d 376, 378, 210 P.2d 883; Flores v. Smith, 47 Cal.App.2d 253, 262, 117 P.2d 712; Roseborough v. Campbell, 46 Cal.App.2d 257, 263, 115 P.2d 8......
  • Dragna v. White
    • United States
    • California Court of Appeals Court of Appeals
    • March 9, 1955
    ...the same purpose is without merit. A fatal vice in a pleading may be urged at any time. Code Civ.Proc. § 434; Fried v. Municipal Court, 94 Cal.App.2d 376, 378, 210 P.2d 883. Judgment McCOMB and FOX, JJ., concur. * Opinion vacated 289 P.2d 428. ...
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