Sime v. Malouf
| Decision Date | 13 January 1950 |
| Citation | 213 P.2d 788,95 Cal.App.2d 82 |
| Parties | SIME v. MALOUF et al. Civ. 16847. |
| Court | California Court of Appeals Court of Appeals |
E.C. Pyle and George Acret, Los Angeles, for plaintiff and respondent.
Jennings & Belcher, Morris Lavine, Los Angeles, for defendants and appellants.
Two petitions for rehearing have been filed by appellants. After reading them we deem it advisable to make some minor corrections in the opinion heretofore filed. Also, it is necessary to decide one point that has been raised for the first time on petition for rehearing and to discuss certain statements made by the author of one of the petitions.
In their briefs appellants made the point that Tad Travers, Kathleen Travers and Iona H. Sime were indispensable parties for the reason that they had signed a joint release with plaintiff and "that there could be no rescission of the release without the joinder of all the makers thereof." In one of the petitions for rehearing it is stated that the point of nonjoinder raised by appellants was not decided and that the failure to decide it "deprives appellants of their property without due process of law and denies to appellants the equal protection of the laws of the State of California." A reference to the briefs and to our opinion will readily show that the contention of appellants was fully considered and disposed of.
In the same petition for rehearing it is argued that the record shows without dispute that Sime and Travers were joint adventurers and that Travers was therefore an indispensable party. It is asserted that this contention was urged by appellants in the trial court upon a motion to exclude evidence. We are unable to find any support for the statement in the 340 pages of reporter's transcript of the argument on the motion. The ground for the claim of misjoinder advanced in the trial court was the one that was repeated in the briefs, and which was disposed of in our opinion.
Under ordinary circumstances we would be justified in ignoring the point now raised for the first time by petition for rehearing. Sanders v. Howard Park Co., 86 Cal.App.2d 721, 723, 195 P.2d 898, and cases cited. However, the question whether one not named is an indispensable party, rather than a merely necessary party, see, Bank of California Nat. Ass'n v. Superior Court, 16 Cal.2d 516, 521- 524, 106 P.2d 879, goes to the jurisdiction and may be raised at any time. Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667, 671, 284 P. 445; Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 265, 73 P.2d 1163. Incidentally, these cases are cited for the first time in the petitions for rehearing. The point will therefore be considered for the reason that it involves a question of jurisdiction.
It appears to be contended in one of the petitions for rehearing that the court found that Sime and Travers were joint adventurers, the statement being that the trial court found "that Tad Travers had an interest in the ultimate success and profits of the joint adventure" and that one of the findings reads, in part, that certain defendants conspired to defraud "this plaintiff and his coadventurer of the fruits and profits of such venture." Although it might appear from this partial quotation that the court was referring to Travers as Sime's coadventurer, it clearly appears from the entire finding that the coadventurer mentioned was...
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