Stafford v. Ware
| Decision Date | 08 December 1960 |
| Citation | 187 Cal.App.2d 238,9 Cal.Rptr. 713 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Guy N. STAFFORD, Plaintiff and Appellant, v. John H. WARE et al., Defendants and Respondents. Civ. 24584. |
Guy N. Stafford, in pro. per., for appellant.
Walter W. Heil, Beverly Hills, for respondents.
We have just filed an opinion, 9 Cal.Rptr. 706, supporting an affirmance of a summary judgment in this case. The plaintiff took a second appeal, this time from an order denying his motion to vacate and set aside the 'order or judgment' which we have just affirmed. The only debatable question presented is: Should we dismiss the appeal or affirm the order?
Taking judicial notice of the steps taken in this case, we find that the answer to plaintiff's complaint was filed as of August 15, 1957, after defendants' default was set aside. The following year the defendants gave notice of 'motion for summary judgment,' seeking specifically an order 'striking the complaint of the plaintiff and/or for entry of judgment in favor of the defendants and against the plaintiff * * *.' The time set for the hearing of the motion was October 21, 1958, over a year after the filing of defendants' answer. The settled statement on appeal, in the companion case, reveals that the trial court declared 'that it appeared the said motion for summary judgment should be treated as a motion to dismiss under the provisions of Section 435 of the Code of Civil Procedure, and the case of Lincoln v. Didak, 162 Cal.App.2d 625 and the said motion would be granted.' The minutes of October 21st, reflect the same determination.
The judgment thereafter entered, however, in September, 1959, recites that the matter came on for hearing '* * * pursuant to notice of motion by the defendants to strike out the complaint * * * and for summary judgment * * *'; ordered that the motion be granted, that the complaint be stricken and judgment entered for the defendants. A motion under section 435 is authorized 'within the time required in the summons to answer.' It was so made in Lincoln v. Didak, 162 Cal.App.2d 625, 328 P.2d 498, to which the court referred. In the premises, we regard the motion as that authorized by section 437c, not that not authorized by section 435, and that this was the motion granted.
Plaintiff's objection, then, that the motion, and the court's ruling, caught him by...
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Adohr Milk Farms, Inc. v. Love
...appears that a defendant can move to strike a complaint only before he has answered it and not afterward. (Stafford v. Ware (1960) 187 Cal.App.2d 238, 239, 9 Cal.Rptr. 713; Lincoln v. Didak (1958) 162 Cal.App.2d 625, 630--631, 328 P.2d 498; Cal.Rules of Court, rule 203, subd. (c); Witkin, C......
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Palmieri v. La Bella
...for filing a motion. (Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 370-371 [motion to strike under § 435]; Stafford v. Ware (1960) 187 Cal.App.2d 238 [motion to strike under § 435]; Lincoln v. Didak (1958) 162 Cal.App.2d 225, 231 [motion to strike under § 435]; and Roy v. Super......
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Ware v. Stafford
...the judgment, and from the order denying the motion. On December 8, 1960, this court affirmed the judgment (Stafford v. Ware, 187 Cal.App.2d 238, 9 Cal.Rptr. 713), holding that the instant case (Ware v. Stafford, 148 Cal.App.2d 840, 307 P.2d 950) had previously decided the identical issues ......