Sullivan v. Wright

• Decision Date: 29 April 1954
• Citation: 124 Cal.App.2d 836,269 P.2d 671
• Parties: SULLIVAN et al. v. WRIGHT et al. Civ. 15730.
• Court: California Court of Appeals Court of Appeals

Page 671

269 P.2d 671

124 Cal.App.2d 836

SULLIVAN et al. v. WRIGHT et al.

Civ. 15730.

District Court of Appeal, First District, Division 2, California.

April 29, 1954.

Phil F. Garvey, San Francisco, George Olshausen, San Francisco, for appellants.

Bronson, Bronson & McKinnon, San Francisco, for respondent Herman James Cox.

NOURSE, Presiding Justice.

Plaintiffs sued for personal injuries and property damage against Russell Wright and several fictitious defendants. More than a year after the accident plaintiffs substituted and served an amended complaint on Herman J. Cox (known as Crazy Cox) designating him as the John Doe sued in the original complaint. The trial court granted Cox's motion to strike this portion of the complaint. Judgment was thereupon entered in favor of William J. Sullivan against both Wright and Cox for the damages to plaintiff's car, in favor of Michael J. Sullivan for personal injuries against defendant Wright alone in the sum of $6,500 and against defendant Wright alone for costs of suit.

Briefly the facts are that William J. Sullivan was operating an automobile when the defendant Wright crashed into the rear of his car at a traffic stop signal, injuring the father, Michael J. Sullivan, riding in the car with William. The two plaintiffs joined in their complaint the two causes of action for personal injuries and for property damage. More than a year after the accident plaintiffs filed an amended complaint substituting Cox for John Doe as a party defendant. By demurrer, answer and by motion to strike, the defendant Cox attacked the amended complaint on the ground that it was barred by the one year statute of limitations. The motion to strike was granted.

Three primary questions are raised on the appeal:

(1) Is the defendant Crazy Cox to be deemed to have waived the plea of the one year statute of limitations, Code Civ.Proc. § 340, by failure to demur or answer on that ground?

The question proposed by the plaintiff is not properly stated. Following the filing of the amended complaint joining for the first time Cox as a party defendant, he filed a demurrer, an answer and a motion to strike, all three pleading the bar of the statute of limitations. The demurrer and the motion to strike were heard at the same time and no objection was then made as to the manner in which the plea was made.

Appellant argues that the plea of the statute of limitations cannot be raised by motion to strike. No authorities are cited as so holding. The practice was followed without comment in Gates v. Wendling Nathan Co., 27 Cal.App.2d 307, 81 P.2d 173; McKnight v. Gilzean, 29 Cal.App.2d 218, 84 P.2d 213; and Day v. Western Loan & Building Co., 42 Cal.App.2d 226, 108 P.2d 702.

But the point does not impress us as having substantial merit. If the order striking the complaint were reversed the demurrer would then be left pending and, in view of the authorities here cited, the trial court could do nothing but sustain the demurrer and enter judgment for defendant Cox on his plea of the statute of limitations.

(2) Does the joinder of a 'John Doe' defendant in the original complaint within the statutory period permit the substitution of the real party defendant after the statutory period has expired?

The answer to this question must be in the negative since the original complaint did not state a cause of action against 'John Doe' or any fictitious defendant. Hence, so far as Crazy Cox is concerned, the...