Kobernick

Defendant Walter M. Shaw appeals from the default judgment entered by the court in the principal action after sustaining a demurrer to Shaw’s cross-complaint without leave to amend.

Plaintiffs (Kobernick) sought to foreclose an equitable lien on real property, naming the limited partnership of Miramar and Carroll Road Properties and First American Trust Co. and Does I through XX as defendants. Kobernick’s complaint alleged a beneficial interest in real property, the legal title to which was held by the defendant First American Trust Company. They sold the property to the defendant limited partner and received back a $160,000 promissory note and chattel mortgage. Their action charges default in payment of the note. The proof of service recites that Shaw was served “. .. on behalf of Miramar and Carroll Road Properties, a limited partnership.” Shaw answered for himself “sued herein as ‘DOE,’ ” not on behalf of the limited partnership.

At the same time as answering, Shaw filed a cross-complaint on behalf of himself and fellow limited partners charging the Kobernicks and the general partner in Miramar and Carroll Road Properties, Antonio M. Pires, Jr., with a conspiracy to…