Tuller v. Superior Court

This is a petition for a writ of mandate to require respondent superior court to set a case for trial or show cause why this has not been done. The merits of the said case are not before us, this proceeding being solely concerned with technical questions of procedure.

Prior to -the present litigation, Edna May Tuller was granted a divorce from Walter K. Tuller, and was awarded the custody of their daughter, Lula May Tuller, petitioner herein. Said daughter on June 9, 1931, being of the age of majority, filed a complaint in the superior court against Walter K. Tuller, her father, seeking support under the provisions of section 206 of the Civil Code, on the theory that she was a “poor person” unable to maintain herself by work. An order to show cause why the defendant should not make provision for her support and counsel fees and costs pendente lite was obtained at this time. The defendant demurred to the complaint, mainly on the ground that Edna May Tuller, the mother of plaintiff, was a necessary party defendant and should have been joined. An affidavit was filed in answer to the order to show cause, denying its substantial allegations. On July 21st, the respondent judge of the superior court sustained the demurrer on the above-mentioned ground, giving plaintiff ten days to amend. At that time, the mother was present in court and expressed her willingness to be joined; and counsel for the plaintiff requested the court to make an order joining her as a party defendant by virtue of its powers under section 389 of the

The original complaint of petitioner against the defendant Tuller contained allegations supported by affidavits of several doctors, to the effect that she was in danger of tuberculosis and was in immediate need of medical attention. It was for this reason, counsel for petitioner say, that relief was sought by application for mandamus to the appellate court. They assert further that the procedure of filing and serving an _ amended complaint would have resulted in great delay in view of the congested calendar; and that an appeal from a judgment in the action would have been a slow and consequently an inadequate remedy.

Passing for the moment the question of the propriety of mandamus as a remedy under these circumstances, we think it is clear that the lower court was in error in making the orders complained of. Section 2'06 of the Civil Code reads in part as follows: “It is the duty of the father, the mother, and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. ...” It is contended that this section establishes a joint liability of the father and mother, which cannot be enforced in an action against one without joinder of the other. Such an interpre

The demurrer should unquestionably have been overruled, and the order sustaining it was palpably erroneous. It was still less proper for the court to refuse to permit the bringing in of the mother at the time of the hearing, when she was present and expressed her willingness to become a party. The power to bring in parties who are necessary to a determination of the cause is, under section 389 of the Code of Civil Procedure, not wholly discretionary. Inasmuch as the court, in sustaining the demurrer, concluded that the mother was a necessary party, it necessarily follows that it should have permitted the joinder at that time. No possible reason save excessive legal formalism could demand that plaintiff be forced, in effect, to start her action anew; and the only purpose to be served would be delay. No discretion resided in the court in this state of the record. We said in Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667 , 671 [ 284 Pac. 445 , 447] : “ . . . when the trial court finds, or the record indisputably shows that a ‘complete determination of the controversy cannot be had without the presence of other parties’, such parties become necessary and indispensable parties and the section is mandatory and the question then becomes one of jurisdiction in that the court may not proceed without bringing them in.” (Italics ours.) (See, also, Solomon v. Redona, 52 Cal. App. 300 [ 198 Pac. 643 ].)

A plain showing of error below is thus presented, first in sustaining the demurrer, and second in refusing to

Petitioner, however, is not debarred from further prosecution of her claims. The effect of the technical maneuvers of counsel for defendant Tuller and the failure of counsel for petitioner to pursue the appropriate remedies provided by statute has been to delay, for a regrettably long period, a trial of the action. Nevertheless, the right of petitioner to file a new action has not been impaired by the judgment entered in this one. It is too plain to require discussion that said judgment was not rendered on the merits, and is consequently not res judicata on any of the issues. (See generally, 2 Freeman on Judgments, sec. 744, p. 1566 et seq.)

The writ is denied.

Shenk, J., and Seawell, J., concurred in the order denying the writ.

Rehearing denied.