Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, Los Angeles County. Sepulveda, J.
There is no authority under our Code for contending that the cross-complaint should pertain to matters occurring previous to the filing of the complaint. By § 438, Code Civ. Proc., relative to a counter claim, subdivision two, the ground must be existing at the commencement of the action; " but under § 442 it may be filed subsequently by leave of Court, as was done in the present case.
Henry Hancock, Appellant in person.
Bicknell & White, for Respondent.
The facts as alleged do not constitute a counter-claim, as they do not arise out of the transaction set forth in the complaint, as the foundation of the plaintiff's claim, and are not connected with the subject of the action, and do not arise upon contract, and it appears upon the face of the so-called cross-complaint that the claim did not exist at the commencement of the action. In short, it is not within a single provision of § 438, Code Civ. Proc.
This action was brought to recover the sum of $ 710, claimed by the plaintiff to be due him from defendant for services rendered, and for board paid by him under a contract with the defendant. The case was tried by a jury, and a verdict was rendered for the sum of $ 683.
Two points were made on the appeal: First, that the verdict is not sustained by the evidence; and, second, that the Court erred in striking out and excluding evidence under defendant's cross-complaint.
In answer to the first point it is only necessary to say that there was sufficient evidence in support of plaintiff's claim to justify the verdict; and so far as the cross-complaint is concerned, we need only remark that the matters therein contained constituted no defense or counter-claim ( Code Civ. Proc. § 438), or matter of cross-complaint ( Code Civ. Proc. § 442), to plaintiff's action.
Judgment and order affirmed.