Yandell v. City of Los Angeles

LANGDON, J. This is an appeal by defendant from an order striking its cross-complaint from the files in the action. Plaintiffs, owners of ranch lands in Owens Valley, brought the action against defendant city, owner of contiguous lands, to enjoin an alleged excessive diversion of percolating water. Defendant answered, denying material allegations in the complaint, and also filed a cross-complaint seeking to condemn the lands of plaintiffs. Plaintiffs moved to strike the cross-complaint on the ground that it did not relate to the transaction or affect the property involved in the action, and on the further ground that the remedy was not permissible as a means of bringing a special proceeding such as condemnation. The lower court’s order granting the motion is appealed from. We have recently discussed the nature of a cross-complaint (see Hanes v. Coffee, 212 Cal. 777 [300 Pac. 963]), but we deem it improper to go into the question at this time, for we agree with plaintiffs that this appeal is prematurely brought. Our statute provides for an appeal from (1) a final judgment, or (2) certain specified orders and judgments. (Cal. Code Civ. Proc., sec. 963.) The order here appealed from is not one of those listed in section 963, and it is plainly not a final judgment. It has accordingly been held that an order striking out a cross-complaint or a counterclaim is not itself appealable, but that the correctness of the order may be reviewed on the appeal from the final judgment. (Pritchard v. King, 104 Cal. App. 460 [285 Pac. 1086]; Merchants Nat. Bank v. Clark-Parker Co., 97 Cal. App. 757 [276 Pac. 387].) Defendant relies mainly upon Howe v. Key System Transit Co., 198 Cal. 525 [246 Pac. 39], where an appeal from an order striking out a cross-complaint was permitted. In that case, however, the cross-complaint was filed by several defendants against other defendants and the parties in the cross-action were of course not identical with those in the *236 main action. The court held that as to the cross-complaining defendants the order was a final determination of their cause of action against the other defendants, and that it was severable from the judgment in the main action. In the instant ease we have no such situation. Where the parties to both actions are the same, it cannot be said that such an order is a complete determination of the cause. The Howe case is distinguished on this ground in Merchants Nat. Bank v. Clark-Parker Co., supra. The appeal is dismissed. Curtis, J., Seawell, J., and Waste, C. J., concurred.