U.S. Supreme Court ADAM v. SAENGER, 303 U.S. 59 (1938)

[Page 303 U.S. 59, 65]

'The cross-action was not an ancillary proceeding, but an independent suit in which a final judgment could be rendered without awaiting a decision in the original suit. Farar v. Steenbergh, 173 Cal. 94, 159 P. 707. It is well settled in this state that a cross-action occupies the attitude of an independent suit and requires service of the cross-action upon the cross- defendant. Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172. This being so, in the absence of a waiver of service, or an appearance by the cross- defendant, personal service on the cross-defendant must be had to confer jurisdiction upon the court to determine the matter and render judgment in the case.'

But the question presented by the pleadings is the status of a cross- action under the California statutes, not under those of Texas. We think its status is adequately disclosed by the California statutes and decisions pleaded by petitioner, and is that for which he contends.

Section 442 of the California Code of Civil Procedure specifically provides that a defendant may secure affirmative relief upon 'cross- complaint' which 'must be served upon the parties affected thereby,' and requires service of 'summons upon the cross-complaint' only upon such parties as 'have not appeared in the action.' [Footnote 1] Arguing that 'action' means only 'cross-action' and not the original action brought by the plaintiff, the Texas court con-

[Page 303 U.S. 59, 68]

for which justice to the defendant requires his presence. It is the price which the state may exact as the condition of opening its courts to the plaintiff. Young Company v. McNeal-Edwards Co., 283 U.S. 398, 400, 51 S.Ct. 538, 539; compare Chicago & Northwestern Railway Co. v. Lindell, 281 U.S. 14, 17, 50 S.Ct. 200, 201.

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED.

Mr. Justice CARDOZO took no part in the consideration or decision of this case.

Mr. Justice BLACK concurs in the result. Footnotes

[Footnote *] Rehearing denied 303 U.S. 666, 58 S.Ct. 640, 82 L.Ed. --; Mandate conformed to 119 S.W.2d 687.

Footnote 1 'Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. If any of the parties affected by the cross-complaint have not appeared in the action, a summons upon the cross-complaint must be issued and served upon them in the same manner as upon the commencement of an original action.'

Footnote 2 'When a plaintiff or a defendant, who has appeared, resides out of the State, and has no attorney in the action or proceeding, the service may be made on the clerk or on the justice where there is no clerk, for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except service of subpenas, of writs, and other process issued in the suit, and of papers to bring him into contempt. If the sole attorney for a party is removed or suspended from practice, then the party has no attorney within the meaning of this section. If his sole attorney has no known office in this State, notices and papers may be served by leaving a copy thereof with the clerk of the court or with the justice where there is no clerk, unless such attorney shall have filed in the cause an address of a place at which notices and papers may be served on him, in which event they may be served at such place.'