Powell v. Lampton

California Court of Appeal Dec 20, 1938 No. Civ. 6053Published

Before: Thompson

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Holding. The court held that the trial court properly sustained a demurrer for uncertainty because the complaint failed to clarify the plaintiff's status in a prior pending or adjudicated action involving the same fund, and the plaintiff waived any claim of abuse of discretion by failing to request leave to amend.

Issues

Whether the complaint was fatally uncertain regarding the plaintiff's status in a prior action involving the same fund.
Whether the trial court abused its discretion by sustaining a demurrer without leave to amend when the plaintiff made no application to amend.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The allegations of the complaint are clearly uncertain.”

“The court did not abuse its discretion in sustaining the demurrer without leave to amend the pleading. No application was made to amend the pleading.”

“The burden is on the plaintiff to affirmatively show an abuse of discretion before the order of the court may be disturbed on appeal.”

THOMPSON, J.

—The plaintiff has appealed from a judgment of dismissal of an action to quiet title to a fund of

[45]

$3,348.52, which judgment was rendered after a general and special demurrer to the complaint had been sustained without leave to amend the pleading.

It is contended the court erred in sustaining the demurrer for the reason that the complaint does state a good cause of action to quiet title to personal property, and because the trial judge abused his discretion in failing to grant the plaintiff leave to amend the pleading. No application to amend the complaint was made by the plaintiff.

The complaint purports to state a cause of action by the trustee of a bankrupt estate belonging to Theodore N. Dyehes, to quiet title to a fund of $3,348.52

in custodia legis.

To identify the fund in controversy, it is specifically alleged that the title to the identical fund was involved “in another action in the above entitled court” numbered 371,067, filed March 16, 1934, in which Theodore. N. Dyehes, the above-named bankrupt, was one of the defendants. The complaint in this case then states that in the former action “certain of said defendants were served with summons and complaint therein; that certain of said defendants defaulted; that certain of said defendants answered”; that findings and judgment were entered therein on July 1, 1935; that the judgment “was not appealed from by certain defendants”, but that other defendants did perfect their appeal therefrom and that the former suit was still pending.

To the complaint in this action the defendants filed a general and special demurrer. The special demurrer for uncertainty asserts that it cannot be determined from the allegations of the complaint whether Theodore N. Dyehes, the bankrupt whom this plaintiff represents, was served with process and answered in the former suit; whether he defaulted in that action; whether judgment was rendered against him for title to and possession of the fund which is involved in this case, or whether the judgment in the former action became final against him.

That demurrer was sustained without leave to amend the complaint. No application to amend the pleading was made by the plaintiff.

Powell v. Lampton

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THOMPSON, J.

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