Jacobson v. Superior Court

CURTIS, J.

The facts in this case are correctly set forth in our former opinion as follows:

“The petitioner seeks the writ of

mandamus

to compel the respondent superior court to transfer a cause pending therein to the municipal court of the city of Los Angeles. A general demurrer to the petition has been interposed.

“On September 20, 1934, the petitioner brought an action in the respondent superior court entitled

Hastrup L. Jacobson, plaintiff,

v.

Aetna Life Insurance Co., defendant,

numbered 378428 in the files of said court. In said action the plaintiff sought to recover a judgment in the sum of $1,300 and interest, representing the amount alleged to have accrued pursuant to the provisions of an insurance policy providing for payment of $50 per month on account of the permanent total disability of the plaintiff, plus the sum of $8120 paid as premiums since the disability the payment of which it was alleged

[172]

was waived by the terms of the policy. The amounts thus sought to be recovered, plus interest, aggregated less than $2,000. The plaintiff also sought a declaratory judgment that he was entitled to future payments of $50 per month during the period of permanent total disability.

“On October 31, 1934, this court filed an opinion and order in the case of

Brix

v.

People’s Mutual Life Insurance Co.,

88 Cal. Dec. 396 [37 Pac. (2d) 448]. In that case a similar action was filed in the superior court in San Francisco wherein the plaintiff sought to recover sums accrued under a similar policy, and instalments to become due in the future. Judgment had been entered in that case for the sums which had become due under the policy, aggregating $1,300, also for sums to become due in the future. In the opinion then filed in that case it was held that the plaintiff was not entitled to recover instalments which had not accrued, that he could not obtain a judgment therefor by resort to the declaratory relief statute,' and that the plaintiff consequently was not entitled to a judgment for the future instalments. The decision on that branch of the case was not disturbed in the opinion filed on rehearing (2 Cal. (2d) 446 [41 Pac. (2d) 537]).