SIME v. MALOUF (1950)

Two petitions for rehearing have been filed by appellants.   After reading them we deem it advisable to make some minor corrections in the opinion heretofore filed.   Also, it is necessary to decide one point that has been raised for the first time on petition for rehearing and to discuss certain statements made by the author of one of the petitions.

In their briefs appellants made the point that Tad Travers, Kathleen Travers and Iona H. Sime were indispensable parties for the reason that they had signed a joint release with plaintiff and “that there could be no rescission of the release without the joinder of all the makers thereof.”   In one of the petitions for rehearing it is stated that the point of nonjoinder raised by appellants was not decided and that the failure to decide it “deprives appellants of their property without due process of law and denies to appellants the equal protection of the laws of the State of California.”   A reference to the briefs and to our opinion will readily show that the contention of appellants was fully considered and disposed of.

In the same petition for rehearing it is argued that the record shows without dispute that Sime and Travers were joint adventurers and that Travers was therefore an indispensable party.   It is asserted that this contention was urged by appellants in the trial court upon a motion to exclude evidence.   We are unable to find any support for the statement in the 340 pages of reporter's transcript of the argument on the motion.   The ground for the claim of misjoinder advanced in the trial court was the one that was repeated in the briefs, and which was disposed of in our opinion.

 Under ordinary circumstances we would be justified in ignoring the point now raised for the first time by petition for rehearing.  Sanders v. Howard Park Co., 86 Cal.App.2d 721, 723, 195 P.2d 898, and cases cited.  However, the question whether one not named is an indispensable party, rather than a merely necessary party, see, Bank of California Nat. Ass'n v. Superior Court, 16 Cal.2d 516, 521–524, 106 P.2d 879, goes to the jurisdiction and may be raised at any time.  Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667, 671, 284 P. 445;  Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 265, 73 P.2d 1163.   Incidentally, these cases are cited for the first time in the petitions for rehearing.   The point will therefore be considered for the reason that it involves a question of jurisdiction.

 It appears to be contended in one of the petitions for rehearing that the court found that Sime and Travers were joint adventurers, the statement being that the trial court found “that Tad Travers had an interest in the ultimate success and profits of the joint adventure” and that one of the findings reads, in part, that certain defendants conspired to defraud “this plaintiff and his coadventurer of the fruits and profits of such venture.”  Although it might appear from this partial quotation that the court was referring to Travers as Sime's coadventurer, it clearly appears from the entire finding that the coadventurer mentioned was Edgerton, Riley & Walter, and not Travers.   The question whether Sime and Travers were coadventurers was not raised or tried or determined by the court.   Therefore, the argument now advanced must fall back on the claim, also made by appellants, that it was shown by undisputed evidence that Sime and Travers were coadventurers.  Needless to say, we could not regard this as an established fact unless the evidence relevant to that question was complete, uncontradicted and conclusive, as to the existence of the claimed relationship.   Instead of the evidence being complete it was extremely meager, and it was manifestly inconclusive.  It was shown that Travers was associated with Crowell, Weedon & Co., who had a 50% interest in the Burbank project which was later acquired by Sunday.   He had no contract or other connection with Edgerton, Riley & Walter.   We have been referred to no evidence, and we have found none, explanatory of his arrangement with Sime.   As a witness he did not assert ownership of an interest in the claim sued on, although he expressed the opinion that Sime should share any recovery with him.   This court would be unjustified in assuming as an established fact that Sime and Travers were joint adventurers.

But even if the two were jointly interested in the claim, Travers was not an indispensable party to an action brought thereon by Sime, in whose name stood all the property rights involved.  Russ v. Tuttle, 158 Cal. 226, 110 P. 813;  Ah Tong v. Earle Fruit Co., 112 Cal. 679, 45 P. 7;  Williams v. Southern Pac.R.Co., 110 Cal. 457, 42 P. 974;  Chan Yo Chow v. Lim Sing, 87 Cal.App. 278, 261 P. 1039.   Even if Travers should have a meritorious claim against Sime, which, of course, is not a question for decision in the present case, it is not a matter which concerns the defendants.  158 Cal. 230, 110 P. 813, supra.

 The petition for rehearing makes the further point, which was not raised in the briefs, that the judgment should not have gone against the corporate defendants.   Certain facts are stated with relation to the original stock issues of the corporations, but no transcript references are given, nor is it stated that the alleged facts were before the trial court.   The point is not one which goes to the question of jurisdiction, and having been raised for the first time on petition for rehearing, will not be considered.   See cases cited, supra.

The petitions for rehearing are denied.

PER CURIAM.