Jenssen v. R. K. O. Studios, Inc.

HELD, J.,

pro tem.

Defendant and respondent R. K. O. Studios, Inc., is a producer of motion pictures, and defendants and respondents Merian C. Cooper, Jane Murfin and Albert Shelby Le Vino were in its employ, the former as an executive producer, and the latter two as writers. Plaintiff and appellant alleges that she submitted to the corporate defendant a certain literary composition to enable said defendant to determine whether it desired to acquire the same for use in motion pictures. The complaint alleges also that said defendant retained said composition for about one month and thereupon returned the same to plaintiff, but that in the interval it had made copies thereof, and thereafter produced, sold, and distributed the same. Damages, an accounting and injunctive relief are sought.

The verified complaint was filed on March 22, 1934, and the answer on May 14, 1934. The action came on for trial on September 23, 1935. At the opening of the trial, and before any evidence was introduced, the plaintiff moved for judgment on the pleadings on the ground that the verifications of the answers were insufficient in form. The defendants urged the legal sufficiency of the verifications, but also requested permission of the court to amend the same. The trial court made no formal ruling on plaintiff’s motion for judgment, indicating, however, that the motion would be denied. Defendants were allowed until 5 o’clock of the following afternoon to file properly verified answers. The court immediately proceeded with the trial, and answers were thereafter and within the time allowed, duly filed. Aside from an elaboration of some of the denials, the amended answers merely changed the form of the verification. No new matter of defense was set up. Plaintiff asked no postponement of the trial. The sufficiency of the amended answers is not questioned. On November 15, 1935, judgment in favor of defendants was entered, and from that judgment plaintiff prosecutes this appeal.

Appellant contends that the trial court erred in deny

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ing her motion for judgment on the pleadings, and also in granting leave to defendants to amend their answers.

The court having permitted the filing of amended answers, and the defendants having availed themselves of the permission so granted, the sufficiency of the original pleadings is not involved here. If error was committed, that error was not in the decision of the motion for judgment, but on the action of the court on the application to amend.