Herrscher v. Herrscher

Decision Date28 July 1953
CourtCalifornia Supreme Court
PartiesHERRSCHER v. HERRSCHER et al. HERRSCHER v. JACKSON. L. A. 22363.

Marcel E. Cerf, Robinson & Laland, San Francisco, James B. Fredericks, Beverly Hills, and Henry Robinson, San Francisco, for appellant.

Hahn, Ross & Saunders, Los Angeles, Thomas D. Mercola, Beverly Hills, and Saul Ross, Los Angeles, for respondent.

SHENK, Justice.

This is an appeal from a Minute Order Granting plaintiff's motion to strike defendant's cross-complaint.

In July, 1951, an action was commenced by John Doe Herrscher, an unborn infant, by its guardian ad litem Ann Jackson, for a determination that the defendant Herrscher is the father of plaintiff, for $1,000 per month support, for $5,000 costs, for reasonable attorney's fees, and $5,000 immediately for medical care of plaintiff's mother during her pregnancy and pending the birth of the plaintiff. The complaint alleged that the plaintiff was conceived during the month of April, 1951 that at that time, Ann Jackson was an unmarried woman; and that she and the defendant had never been legally married. An injunction pendente lite was secured restraining defendant and four named defendants from disposing of any of defendant's property.

The defendant filed an answer and cross-complaint. The answer denied the existence of plaintiff and denied paternity. The cross-complaint named Ann Jackson, as guardian ad litem and individually, and ten fictitious persons as cross-defendants. It alleged that Ann Jackson had introduced herself to defendant by false representations; that she had engaged in a course of conduct of introducing herself to men and engaging in intimate relations with them and that on frequent occasions she had demanded money for purported pregnancies from those men under threats of violence and embarrassment; that upon learning these facts the cross-complainant had informed her that he did not desire to continue keeping company with her, whereupon she extorted money from him under threats of violence; that she had threatened to charge him with assault and burglary; that she had caused to be published in the newspapers false information concerning him; that fictitious cross-defendants, acting jointly with her in the common design to extort money from cross-complainant, had demanded that he pay her the sum of $25,000 under threats of violence, humiliation and embarrassment; and that he had no knowledge of the claimed pregnancy until this suit was brought. The cross-complaint prayed that the complaint he dismissed; that judgment be rendered declaring the non-existence of the relationship of parent and child between cross-complainant and the purported plaintiff; for $100,000 general damages for injury to his credit and reputation; and for other relief. Some time after the filing of the complaint the unborn plaintiff died.

The cross-defendant Ann Jackson appeared and filed a demurrer to the cross-complaint. She also filed a notice of motion to strike the cross-complaint from the files on the ground that it was not filed in good faith and that it was sham, irrelevant, and frivolous. These matters came before the court for hearing on December 21, 1951, together with a motion of the defendant to dissolve the restraining order. Following the hearing an order was entered in the minutes on January 18, 1952, the pertinent parts of which are as follows: '* * * Demurrer is ordered off calendar. Motion of plaintiff and cross-defendant is granted. Motion of defendant is granted. (Defendant to prepare, serve and file formal order). * * *'

The defendant contends that there is no basis in law for striking his cross-complaint from the files; that it sufficiently states a cause of action by way of cross-complaint against Ann Jackson within the terms of Section 442 of the Code of Civil Procedure; that it is shown therein that Ann Jackson is endeavoring to perpetrate a fraud on him by falsely alleging that she is preganant because of him; that she is using her alleged pregnancy as a means to obtain money from him; that her alleged physical condition and personal conduct are sufficiently connected with the alleged cause of action for her own claim of support as to give it proper standing as a cross-complaint; and that in any event there is no showing whatever to justify striking his cross-complaint from the file on the grounds asserted.

It is the position of the plaintiff that an order dismissing a cross-complaint or striking it from the files is not an appealable order and, furthermore, that the particular order from which this appeal is taken is not a final order and therefore is not appealable.

An order granting a motion to strike a cross-complaint from the files is equivalent to an order dismissing the cross-complaint. Howe v. Key System Transit Co., 198 Cal. 525, 246 P. 39. Where the parties to the cross-complaint are not identical with the parties to the original action, the order amounts to a final adjudication between the cross-complainants and cross-defendants and is appeable. Sjoberg v. Hastorf, 33 Cal.2d 116, 199 P.2d 668; Kennedy v. Owen, 85 Cal.App.2d 517, 520, 193 P.2d 141. It has long been the rule in this state that an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment. Southern Pac. R. R. Co. v. Willett, 216 Cal. 387, 14 P.2d 526.

The time for filing a notice of appeal is determined by the provisions of Rule 2 of the Rules on Appeal, namely, 'within 60 days from the date of entry of the judgment'. * This rule followed the provisions of former Section 939 of the Code of Civil Procedure which it superseded. Difficulties in practice were...

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