Krug v. Meehan
| Decision Date | 18 September 1951 |
| Citation | 235 P.2d 410,106 Cal.App.2d 554 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KRUG v. MEEHAN. Civ. 18248. |
Gilford & Mendelson and Roy M. Good, Los Angeles, for appellant.
Arthur G. Baker, Los Angeles, for respondent.
Plaintiff brought this action seeking a decree setting aside a conveyance of realty on the ground it had been procured by undue influence. A demurrer of defendant Rose A. Meehan was sustained to the complaint and to an amended complaint. With her demurrer to the complaint defendant Rose A. Meehan filed a cross-complaint seeking a decree quieting title to the realty in her. Plaintiff answered the cross-complaint. The demurrer of Rose A. Meehan was also sustained to a second amended complaint with leave to amend. Plaintiff did not amend within the time allowed and, on motion of Rose A. Meehan, a minute order 1 was made dismissing the complaint as to her pursuant to the provisions of section 581(3) of the Code of Civil Procedure. Plaintiff appealed from the latter order.
The second amended complaint alleges that James Cleary, then 78 years of age, now deceased, purchased two parcels of realty and that title was taken in his name and that of defendant Rose A. Meehan, as joint tenants, and that the purchase money was Cleary's. Facts are alleged to the effect that a confidential relation existed between Cleary and Meehan and that the latter procured title to be taken in their joint names by the exercise of undue influence on him. The cross-complaint seeks to have the title of Rose A. Meehan quieted to the same two parcels of realty described in the complaint.
The court, at the oral argument, suggested that there was a question whether the appeal was premature. Counsel requested and were given leave to brief the question. Appellant has filed a memorandum in which he concedes, correctly, that the appeal is premature. See Sjoberg v. Hastorf, 33 Cal.2d 116, 199 P.2d 668; Nicholson v. Henderson, 25 Cal.2d 375, 153 P.2d 945.
The controversy in the present action is between only two parties: the administrator of the estate of Clearly and Rose A. Meehan. The parties to the complaint and the answer thereto and to the cross-complaint and the answer thereto are identical. There is now an order of dismissal, which, if a cross-complaint had not been filed, would have been an appealable order, Code Civ.Proc., sec. 581d; Gwinn v. Ryan, 33 Cal.2d 436, 202 P.2d 51, but because of the cross-complaint and answer thereto the action is still pending; a final judgment...
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