Krug v. Meehan
| Decision Date | 27 December 1951 |
| Citation | 108 Cal.App.2d 416,239 P.2d 46 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KRUG v. MEEHAN et al. Civ. 18248. |
Gilford & Mendelson, Los Angeles, for plaintiff-appellant.
Arthur G. Baker, Los Angeles, for defendant-respondent.
The appeal taken by plaintiff in this action was dismissed upon the ground that it was premature, Krug v. Meehan, Cal.App., 235 P.2d 410. As stated in the opinion, the ground of the dismissal was that the record on appeal disclosed that there was on file in the action a cross-complaint to quiet title and answer thereto involving title to the same property and the same issues as the complaint and answer. We held that although the action had been dismissed on motion, for plaintiff's failure to amend his complaint, there had been no final judgment determining the question of title. It was subsequently made to appear to the court that the cross-complaint had been dismissed in July, 1950, upon the written request of the attorney for defendant, respondent herein. Thereupon, issuance of remittitur was stayed and an order was issued to show cause why our judgment should not be vacated, and after due notice the same was heard on affidavits of counsel for the parties. It was known to the court that upon argument of the appeal the court raised the point that by reason of the undetermined issues raised by the cross-complaint and answer thereto as shown by the record on appeal, there had been no final judgment, and it was also known to the court that the attorney for respondent, in the argument, or in his points and authorities subsequently filed as to the suggested premature appeal, did not advise the court or counsel for appellant that the cross-complaint had been dismissed. It was made to appear by affidavit of one of the attorneys for plaintiff that plaintiff's present counsel were substituted for counsel who had tried the case and were unaware of the fact of such dismissal until after our judgment dismissing the appeal. It was made to appear by affidavit of the attorney for respondent that he had forgotten he had caused the cross-complaint to be dismissed, and that the fact was not recalled to his mind until after our judgment dismissing the appeal. Upon the hearing of the order to show cause the attorney for respondent stated that he would not oppose an order vacating our judgment upon the ground of mutual mistake. We need not, however, give heed to this concession in...
To continue reading
Request your trial
-
Mattz v. Superior Court
...an order of dismissal and reinstate an appeal (see, e.g., Lundy v. Lakin (1949) 89 Cal.App.2d 849, 202 P.2d 369; Krug v. Meehan (1951) 108 Cal.App.2d 416, 239 P.2d 46; see generally 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 514, pp. 497-498), and at least under the circumstances of th......
-
Epley v. Califro
...Wiggin v. Superior Court, 68 Cal. 398, 402, 9 P. 646, 648; see also Hall v. Polack, 42 Cal. 218. Thus it was held in Krug v. Meehan, 108 Cal.App.2d 416, 417, 239 P.2d 46, 47, a case not wholly unlike the present, that where an appeal had been dismissed as being premature under a mistaken as......