Bartell v. Johnson

GRIFFIN, Acting P. J.

The trial court sustained defendant’s general demurrer to plaintiff’s complaint without leave to amend. Plaintiff appeals from the judgment based thereon. The complaint alleges generally that on July 17, 1941, defendant herein, J. H. Johnson, filed a complaint in the Municipal Court of San Diego County where plaintiff here, Ernest W. Bartell, was a defendant therein; that the complaint there

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filed purported to allege a cause of action in favor of the plaintiff therein and against the defendant therein for and on account of personal injuries sustained by that plaintiff (Johnson), who is the defendant here, while he was on board of a certain fishing boat known as the “Sportsman,” owned and operated by plaintiff Bartell; that a copy of the summons and complaint in that action was allegedly served upon Bartell on March 21, 1942; that on April 1, 1942, a request for a default of the defendant was filed by Johnson with the clerk of that court; that thereafter, on April 2, 1942, judgment by default was made by the court and entered in plaintiff’s favor and against the defendant Bartell in the sum of $770; that Bartell, by reason of accident, mistake, inadvertence, surprise and excusable neglect and fraud, failed to appear and answer the complaint within the time allowed by law; that plaintiff herein had, at the time of the entry of the default and judgment, and still has, a good and sufficient defense to the action; that an unfair advantage was practiced by Johnson upon the court in those proceedings; that previously, about October 14, 1940, a complaint was filed in the municipal court in San Diego wherein Johnson was plaintiff and Bartell was defendant; that the complaint purported to allege and set forth a cause of action in favor of Johnson and against Bartell for damages allegedly sustained by Johnson as the result of personal injuries sustained on board the fishing boat which was operated by Bartell. A copy of the complaint and summons was served upon Bartell in that action. He filed his verified answer thereto denying the allegations of the complaint, and in addition thereto set up a separate affirmative defense of contributory negligence on the part of Johnson. The issues raised by the complaint and answer were duly heard before the municipal court without a jury and at the conclusion of plaintiff’s evidence the court granted a non-suit. On a motion to vacate the order granting the nonsuit the municipal court judge prepared a memorandum decision which is annexed to the complaint on file herein. A copy of the written judgment entered upon the nonsuit was by reference made a part of the complaint filed herein. The complaint further alleges that on September 12, 1941, Johnson filed a notice of appeal to the appellate department of the superior court from the judgment of nonsuit; that later the appeal was duly and regularly presented, argued and heard before said appellate department and a judgment of nonsuit was