Whittel v. Roche, 8360.

• Decision Date: 15 February 1937
• Docket Number: No. 8360.,8360.
• Citation: 88 F.2d 366
• Parties: WHITTEL v. ROCHE, Judge, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

88 F.2d 366 (1937)

WHITTEL v. ROCHE, Judge, et al.

No. 8360.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1937.

Vincent W. Hallinan, Jos. I. McMullen, and Carey Van Fleet, all of San Francisco, Cal., for petitioner.

George J. Hatfield and Frank J. Perry, both of San Francisco, Cal., for respondents.

Before WILBUR, GARRECHT, and HANEY, Circuit Judges.

WILBUR, Circuit Judge.

Petitioner brought a suit in the Superior Court of the State of California in and for the City and County of San Francisco to have a trust declared as to 100 shares of stock in certain corporations hereinafter mentioned standing in the name of defendants, and for an accounting as to the dividends thereon, claiming that the stock had been conveyed to the defendant George Whittel, Jr., in trust to deliver one-half thereof to the petitioner upon the death of the mother of George Whittel, Jr.

The case was transferred to the District Court of the United States for the Northern District of California. After transfer the petitioner amended his complaint and the defendant George Whittel, Jr., and George Whittel & Company, Inc., a corporation, answered the amended complaint, admitting that the 100 shares of stock had been transferred to George Whittel, Jr., as alleged in the complaint, but denied that the stock was transferred in trust. The answer admitted that George Whittel, Jr., is the owner of 50 shares of capital stock of the Whittel Realty Company, a corporation, and is the owner of all the issued outstanding capital stock of the defendant George Whittel & Co. The answer denies "that said property or any part thereof or any other property was conveyed in trust by Anna Louise Whittel to the said George Whittel, Jr." Defendants prayed that plaintiff take nothing by his complaint and for costs and that the "defendants have and recover such other and further relief as may be meet and proper."

On April 20, 1936, petitioner filed with the clerk of the District Court an order to dismiss the action. The dismissal was not entered by the clerk.

Respondents contend that the order for dismissal filed by petitioner with the clerk was insufficient to effect a dismissal because in an equity case such dismissal must be ordered by the court; that it cannot properly be entered by the clerk without such order. Before the petitioner filed his order for dismissal the defendants, on April 16, 1936, had given notice of motion to be heard April 20, 1936, for leave to amend their answer and to file a cross-complaint. The hearing of this motion was continued to April 27, 1936. In the meantime (on April 23, 1936) the defendants gave notice that on April 27, 1936, they would move the court for an order striking from the files petitioner's order for a dismissal. On April 27, 1936, these motions were all continued to April 28, 1936, when they were heard and taken under advisement. On April 30th the court granted the defendants' motions, whereupon the amended answer and cross-complaint were filed. Thereafter, on July 11, 1936, petitioner filed a written motion to dismiss. This motion was based upon petitioner's order of dismissal filed April 20, 1936. It was heard July 20, 1936, and denied August 4, 1936.

Inasmuch as the petitioner had an absolute right to dismiss the action at any time before the filing of a pleading on behalf of defendant for affirmative relief, the respondents should have made the order of dismissal at the time their attention was first called to the fact that the petitioner desired to dismiss the action. Consequently, instead of striking out the petitioner's order for dismissal and granting the defendants leave to amend, the trial court should have dismissed the action. Inasmuch as the right to dismissal of the action accrued before the filing of the affirmative defense and cross-complaint on the part of the defendants, subsequent filing of this pleading does not affect his right. See, Youtsey v. Hoffman (C.C.) 108 F. 699; Cowham v. McNider (D.C.) 261 F. 714; Sgobel & Day v. Craven (C.C. A.) 15 F.(2d) 364.

The defendants, in the amended answer to the amended complaint, prayed that it be declared and adjudged that George Whittel, Jr., defendant, is the owner, entitled to the possession of all said property and plaintiff has no right, estate, title, or interest therein, and in the cross-complaint defendant George Whittel, Jr., alleged ownership of the property in question and of the dividends arising therefrom, and that an adverse claim was made thereto by the plaintiff, and prayed that his title to said property be quieted.

Petitioner asserts that he has an unqualified right to dismiss the action at any time before the defendants sought affirmative relief and that this right may be enforced by this court by writ of mandamus.

The respondents concede the right to dismiss the action at any time before affirmative relief was sought by the defendants. This concession is in accord with the decision of the Supreme Court in Jones v. Securities & Exchange Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015. This is the rule in California. Also, Kaufman v. Superior Court, 115 Cal. 152, 46 P. 904; section 581, Cal.Code of Civil Procedure, as amended by St.1935, p. 1954. See, also, Ex parte Skinner & Eddy Corp., 265 U.S. 86, 93, 44 S.Ct. 446, 68 L.Ed. 912. Respondents, however, contend that by the answer on file at the time the plaintiff-petitioner gave his order for dismissal the defendants did seek affirmative relief. It is argued that a suit to quiet title to personal property may be maintained in the courts of California under the provisions of section 438, Cal.C.C.P., and that a similar right is recognized in the federal courts and that the answer of the defendants contained sufficient material to constitute an affirmative defense to quiet title to the stock in controversy, legal title to which petitioner concedes is in defendant, George Whittel, Jr., but which petitioner claims is held subject to a trust in his behalf. In their contention that the answer demanded affirmative relief respondents rely upon the prayer of the answer for general relief and cite the case of Automotive Products v. Wolverine Bumper & Specialty Co. (C.C.A.) 15 F.(2d) 745, a patent infringement case, in which it was held that such a prayer was sufficient to affirmatively invoke the jurisdiction of the court on behalf of the defendant where, under the present system, affirmative matter formerly required to be set up by a cross-complaint or counterclaim may be set up by answer. Equity Rule 30 (28 U.S.C.A. following section 723). We may concede that if the allegations of the answer had been those appropriate to a suit to quiet title, the prayer for general relief would be sufficient to invoke the affirmative action of the court on behalf of the defendants, but a careful perusal of the answer shows that the pleading is directed toward a denial of the allegations of the complaint in so far as those allegations charged the defendant with being a trustee. The allegation that the property was owned by the defendant was not directed to procuring an affirmative declaration to that effect by the court, but to a defense against the claim that the title was held by the defendant George Whittel, Jr., in trust for the plaintiff. It is nowhere alleged that plaintiff was claiming title to the property adversely to the defendants and that this title was without merit. Under these conditions the prayer for general relief can hardly be deemed to be an affirmative prayer for judgment that title of the defendant be quieted. It must be assumed that the pleader was aware of the right to bring an action to quiet title and the right to invoke such a decree of the court by appropriate pleading and prayer and by so doing to defeat an attempt to dismiss the action. The claim that this pleading contained an affirmative defense in the nature of an action to quiet title is obviously an after-thought not in the mind of the pleader at the time the pleading was framed. It ought not to be strained to include a cause of action not contemplated at the time the pleading was filed. The request of the defendants to amend their answer and file a cross-complaint is a confession of the weakness of their position, for the purpose of the request, as evidenced by the pleadings subsequently filed, was to incorporate the very allegations appropriate to a quiet title action which were omitted in the original answer. It is clear, then, that the cause should have been dismissed upon the application of the petitioner.

It appears from the statements of counsel in their briefs and on the oral argument that the petitioner had brought an action for conversion of the same property which he claims in this action. In that regard the petitioner states: "Plaintiff's counsel in this case realizing that they were pursuing a remedy not entirely adequate to the situation, and finding that they had a complete remedy at law, chose to pursue that remedy, which under normal circumstances they are bound to pursue, and filed a suit for conversion in the State Court, in and for the City and County of San Francisco, numbered there 264,451, and which upon removal to the Federal Court is numbered there 20,068-S."

In that regard the respondents state:

"On February 29, 1936, the plaintiff filed in the State Court a second suit against the defendants for conversion of the property referred to and described in the complaint in the first suit. The purpose of the plaintiff in filing the dismissal in the first suit was not with the idea of ending litigation but solely for the purpose of having the same matter tried in the state court.

"This, the plaintiff cannot do."

Respondents claim that under said circumstances where the dismissal was sought for the purpose of bringing a new suit the court will refuse to dismiss the case, citing Young v. Southern Pacific Co. (C.C.A.) 25 F.(2d) 630. That case involved a number of successive suits...