Wilson v. Frakes

• Decision Date: 03 March 1960
• Citation: 3 Cal.Rptr. 434,178 Cal.App.2d 580
• Parties: Harry Jerome WILSON, Plaintiff and Appellant, v. Frank B. FRAKES, Burton A. Browne (sued as Jane Doe Frakes), John One, John Two, Jane One, Defendants, Frank B. Frakes, Respondent. Civ. 23922.
• Court: California Court of Appeals Court of Appeals

Page 434

3 Cal.Rptr. 434

178 Cal.App.2d 580

Harry Jerome WILSON, Plaintiff and Appellant, v. Frank B. FRAKES, Burton A. Browne (sued as Jane Doe Frakes), John One, John Two, Jane One, Defendants Frank B. Frakes, Respondent.

Civ. 23922.

District Court of Appeal, Second District, Division 3, California.

March 3, 1960.

John J. Guerin, Los Angeles, for appellant.

Shepherd & Shepherd, Los Angeles, for respondent.

BISHOP, Justice pro tem.

The plaintiff has appealed from the order dismissing his action, entered in the minutes December 1, 1958, and from the subsequently made formal judgment also dismissing the action. The order is to be treated as a judgment, for the purposes of appeal (Herrscher v. Herrscher, 1953, 41 Cal.2d 300, 303-304, 259 P.2d 901, 903), and the order is the judgment from which any appeal is to be taken. Marino v. Valenti, 1953, 118 Cal.App.2d 830, 850, 259 P.2d 84, 95. We are, therefore, dismissing the appeal from the judgment, as distinguished from the order, and affirming the order as modified.

The events that gave rise to our problem all took place in the year 1958. Very early in January, the plaintiff filed a complaint for ejectment and damages, in which he made Frank B. Frakes and four fictitiously named persons defendants. In the middle of January, Frakes and E. H. Bittick filed an answer, the latter 'sued herein as John Doe,' according to the answer's introductory paragraph. On January 30th, two motions were made: One by the plaintiff to strike Bittick's answer; another by the latter to be made a party defendant and that his answer be allowed to stand. The trial court denied the first motion, but granted the second, a term of the order granting it being that the words 'sued herein as John Doe' be deleted. Just four days after the court had ordered that Bittick be made a defendant, the answer he had already filed to stand, the plaintiff dismissed the action as to him (Bittick) and three of the fictitiously named defendants. On November 26th, the trial court denied Bittick's motion to strike the dismissal and to reinstate him as a defendant, but instead granted the motion of defendant Frakes to dismiss the action. This was the order entered in the minutes on December 1st. On December 5th a formal judgment of dismissal was entered. The notice of appeal from the order and judgment followed, December 9th.

When the trial judge was confronted with the first two motions, one to strike Bittick's answer and the other that he be made a party, he must have been tempted to say: 'He's already a defendant.' True, Bittick's name did not appear among those included, but the idea that the persons 'fictitiously' named in a complaint are known to the plaintiff, it is only their names that the unknown, is itself a fiction, in most cases. We find these words of interest in Bayle-Lacoste & Co. v. Superior Court, 1941, 46 Cal.App.2d 636, 644, 116 P.2d 458, 463: 'A party may appear though he is not named in the complaint. In Farmers' [& Merchants'] Nat. Bank [of Los Angeles] v. Peterson, 5 Cal.2d 601, 606, 55 P.2d 867, 869, the court said: 'The defendants complain that trustee Boothe, who appeared voluntarily and filed his answer, was not properly a party defendant because he was not named as a party in the complaint or the amended complaint, and that consequently the judgment against him is void. There is, of course, no merit to the point. Boothe invoked the judgment of the court by his voluntary appearance, and may not now be heard to deny the jurisdiction of the court to render such judgment. (Tyrrell v. Baldwin, 67 Cal. 1, 4, 6 P. 867; section 416, Code Civ. Proc.)"

Moreover, by his answer defendant Bittick not only admitted that he was in possession of the property from which the plaintiff sought to eject those there, but asserted that he had been in possession for a longer period than the plaintiff claimed. Why, then, did he not fit the picture painted by the plaintiff? He and his codefendant, Frakes, were withholding and had wilfully and intentionally withheld the possession from plaintiff and his predecessors in title. The circumstance that the defendants denied the further allegations that they were 'unlawfully' in possession, and that their possession 'damaged' the plaintiff 'in the sum of $4,980.77,' should not suffice to remove either one of them from the role of defendant, which they so admirably filled.

From the facts that the trial court had removed from Bittick's answer, the words 'sued herein as John Doe,' and ordered that he be made a party, it is to be presumed that it did not proceed on the theory that Bittick was already a party. The action taken finds support, however, under the further facts that were alleged in Bittick's verified answer and in the affidavit filed in support of his motion to be made a party. It appeared that he and his codefendant, Frakes, had entered into an arrangement whereby the latter was to farm the property of which plaintiff sought to obtain possession, and they were to share equally in the crops to be grown. Bittick's right to enter into such a deal grew out of the fact that he was the lessee under a written lease with the true owner, one Burton A. Browne. The occupancy of the land by Frakes thus was possession by Bittick as well. A judgment entered against Frakes, in an action to which Bittick was not a party, would be no protection to him (Frakes) against Bittick's contention that he had the right, and so the duty to carry out his agreement with Bittick. Furthermore, a judgment ejecting Frakes from the land would inequitably affect and jeopardize Bittick's interest in the use agreed to be made of the property he had leased. The consequence is that Bittick's status was doubly that set forth in the opening sentence of section 389, Code of Civil Procedure:...