Schwartz v. Schwartz
| Decision Date | 08 July 1953 |
| Citation | 259 P.2d 33,119 Cal.App.2d 102 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SCHWARTZ v. SCHWARTZ et al. Civ. 19480. |
Huston T. Carlyle, in pro. per., for appellant.
Hahn, Ross & Saunders, Los Angeles, for respondent, Bernard Schwartz.
Alma Pauline Schwartz, in pro. per.
This is an appeal from the judgment pursuant to order striking appellant's complaint in intervention for declaratory relief.
Plaintiff Alma Pauline Schwartz brought suit against defendant Bernard Schwartz for divorce and for custody of their two children. Appellant is the attorney of record for Mrs. Schwartz. After various legal proceedings and expenditure of time and effort by appellant, the parties to the divorce case became reconciled. Mrs. Schwartz instructed appellant as her attorney to dismiss the case, and told him that she and her husband 'will continue to pay you as per court order'. Two weeks later appellant prepared his complaint in intervention, naming his own client, Mrs. Schwartz and Mr. Schwartz as defendants, setting out that he had incurred costs and earned fees but had only received $150; that the parties defendant, Mr. and Mrs. Schwartz, had conspired to deprive him of his fees and costs; that he was entitled to additional fees and also because of their fraud and malice that he was entitled to $600 punitive damages. Appellant further alleged on information and belief that 'Plaintiff (appellant) has certain property rights in the divorce proceedings herein mentioned insofar as the question of attorney's fees and court costs are therein in issue'. After certain other allegations as to financial detriment to himself that he could foresee if the case were dismissed he concludes:
'With this end in view, Plaintiff respectfully suggests to this Honorable Court that an Order be made reserving jurisdiction in the above entitled Court until such time as Plaintiff may obtain a judicial determination of his rights as to the premises and issues herein set forth relative to attorney's fees and court costs earned and accrued by Plaintiff, and for which Defendants may be jointly and severly liable from the date of filing the Complaint for Divorce in the above entitled and numbered action and including June 18, 1952; and Plaintiff further respectfully suggests that if a dismissal is authorized by this Honorable Court of the aforesaid divorce action, that said dismissal be conditioned upon the fact that Defendants and each of them first pay to Plaintiff such attorney's fees and court costs and punitive damages in the total sum of $1,350.00, or to give adequate security for payment of any such additional fees, court costs and punitive damages, and for such other and further adequate relief as to this Honorable Court may seem just and equitable in the premises.'
This proposed complaint in intervention was presented to one of the commissioners of the trial court who approved it for filing. This order by the commissioner doubtless was inadvertently made.
The fact that such approval was given by a commissioner in no way precluded the making by the reconciled couple of a motion to strike the complaint in intervention. Sec. 937 of the Code of Civil Procedure; Alpers v. Bliss, 145 Cal. 565, 572, 79 P. 171. See also: Bryant v. Superior Court, 16 Cal.App.2d 556, 61 P.2d 483; Metropolitan, etc., Co. v. Margulis, 38 Cal.App.2d 711, 102 P.2d 459. We find nothing in the case of Townsend v. Driver, 5 Cal.App. 581, 90 P....
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...amount due for his services. (See Meadow v. Superior Court, 59 Cal.2d 610, 615, 30 Cal.Rptr. 824, 381 P.2d 648; Schwartz v. Schwartz, 119 Cal.App.2d 102, 104--105, 259 P.2d 33.) Other contentions of the Van Winkles need not be considered since such contentions are fatally dependent upon iss......
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