Taliaferro v. Taliaferro

This action is one of a series arising from the property settlement agreement executed by the parties in 1943. In 1949 an action was filed by plaintiff, the former wife, for amounts alleged to have accrued to her under this agreement. Defendant, the former husband, cross-complained for declaratory relief and for the amount of alleged overpayments and other amounts alleged to be due him. The action was fully tried. The court determined that the agreement, as later modified by the parties, required payment of $275 per month, to he reduced by $75 per month during periods when the daughter who had not yet reached majority should not he with the mother. The judgment fixed the amounts due to plaintiff, allowed certain offsets to defendants, and awarded the net difference to plaintiff. This judgment determined the obligations of the parties as of September 30, 1952. Defendant appealed and the judgment was affirmed. (Taliaferro v. Taliaferro, 125 Cal.App.2d 419 [ 270 P.2d 1036 ].)

The complaint in the present action is for amounts claimed to have accrued since that determination. Defendant filed an “Answer, Counterclaim and Cross-complaint.” The answer admits execution of the property settlement agreement, hut denies that anything is due under it, and pleads nine “special defenses,” all of which are claims against plaintiff by way of offset. The “counterclaim” sets up four claims against plaintiff, each for an amount in excess of her claim. The “cross-complaint” alleges 10 claims, four of which duplicate the four “counterclaims.” The remaining six seek a declaration of the rights and duties of the parties under the property settlement agreement, and recovery of allegedly excessive payments made thereunder by defendant.

Without filing an answer to the “cross-complaint,” plaintiff moved for summary judgment. This motion was granted as to all hut two of the issues raised by defendant’s pleading. As to these two issues, the case was later tried. Judgment was for plaintiff, and defendant appeals

The question then becomes whether the “cross-complaint” here was such in law. A cross-complaint requires an answer. (Code Civ. Proc., §442.) A counterclaim requires no answer, and its allegations are deemed controverted without further pleading. (Code Civ. Proc, § 462.)

Under the California statutes, there is a broad area in which there is no true distinction between a cross-complaint and a counterclaim. The cross-complaint affords a broader remedy only in the sense that it may be used to bring new parties into the action, (Code Civ. Proc., § 442) whereas the counterclaim must ‘ ‘ exist in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action.” (Code Civ. Proc., § 438). While the counterclaim “must tend to diminish or defeat the plaintiff’s recovery” (Code Civ. Proc., §438), the code specifically authorizes recovery of an affirmative judgment by defendant where his counterclaim exceeds plaintiff’s demand. (Code Civ. Proc., § 666.) A cross-complaint may be filed only when the affirmative relief sought by defendant constitutes a claim “relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought.” (Code Civ. Proc., § 442.) Since 1927, there has been no comparable limitation upon the counter

Here defendant’s pleading meets all the requirements of a counterclaim. On this appeal, defendant-appellant asserts error in vacation of a default entered for failure to answer his “cross-complaint,” and seeks a determination that respondent is in default. On the whole record, we are satisfied that the interests of justice will best be served, and the precedents more closely followed, by treating defendant’s “counterclaim and cross-complaint” as a counterclaim, which does not require answer. It follows that the summary judgment procedure was timely, and need not have awaited filing of an answer to appellant’s pleading.

As previously indicated, respondent’s default for failure to answer the pleading of appellant was entered by the clerk. This default was vacated by court order., upon the ground that the default was entered “by clerical mistake.” Appellant asserts error in this order. As pointed out above, appellant’s pleading is to be deemed a counterclaim. Thus no answer was required, the entry of default was a clerical error, and the order vacating the default was proper.

Appellant also argues that the trial court based its ruling on the motion for summary judgment upon the doctrine of res judicata which, he says, was not properly raised. It nowhere appears that the ruling was based upon this doctrine. Furthermore, the complaint alleges and the answer admits that in action Number 46893 (the same ease decided on appeal in Taliaferro v. Taliaferro, supra, 125 Cal.App.2d 419 ) respondent had judgment for all sums due to September 30, 1952. The decision on appeal in that case shows that an accounting was had between the parties. At least as to appellant’s present claims under the property settlement agreement, it seems clear that he is barred by the doctrine of res judicata. In the absence of the affidavits upon the motion for summary judgment, we cannot assume that they did not refer to the prior adjudication. No error is shown.

The ease was tried as to the two issues not disposed of on the motion for summary judgment. At conclusion of that trial, the court found that “all of the allegations of the Answer, Counterclaim and Cross-complaint” are untrue. Appellant asserts that this finding is too broad, since evidence was received only as to the two issues. However, the summary judgment statute specifically provides that, where motion for summary judgment is granted only as to part of the issues, judgment shall not be entered until termination of the action, and that the judgment then entered shall include the award

Judgment affirmed.

Kaufman, P. J., and Dooling, J., concurred.

A petition for a rehearing was denied November 15, 1957, and appellant’s petition for a hearing by the Supreme Court was denied December 11, 1957.