Provident Land Corp. v. Bartlett

STURTEVANT, J.

Provident Irrigation District, a corporation, heretofore issued and there were outstanding a large number of its bonds. The corporation became embarrassed financially. The plaintiff, another corporation, Provident Land Corporation, hereinafter called the Provident, was formed for the purpose of acquiring said bonds and protecting the rights of the holders thereof. George H. MeKaig, W. G. Aldenhagen, and E. 0. Kaufmann were the directors of the Provident. George H. MeKaig, Fred G. Stevenot, and E. 0. Kaufmann were the members of and constituted the Bondholders’ Protective Committee of the Provident Irrigation District. The defendant Louis Bartlett, Esq., was employed to render legal services. He entered upon the discharge of the employment and performed valuable services which were terminated by the settlement of all matters in controversy.

The Provident commenced an action against the defendant Louis Bartlett to obtain declaratory relief. The defendant appeared and answered and at the same time filed a cross-complaint. He named as defendants the Provident, the directors thereof, and the members of the Bondholders’ Protective Committee of Provident Irrigation District. The cross-complaint contained two counts. Later he filed an amendment as of course, adding certain defendants. He also amended the second count. On April 17, 1941, he filed a second amendment adding a third cause of action which is a common count for services rendered. Counsel treated all three counts as but different statements of one and the same claim. On April 7, 1941, George H. MeKaig demurred to the cross-complaint and to counts one and two; on April 15, E. 0. Kan fm arm demurred to the cross-complaint and to counts one and two; on April 7, 1941, W. G. Aldenhagen demurred to the cross-complaint and to counts one and two. The record

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does not show that a demurrer or answer was filed by the Provident. However, it does show that the Provident made a motion to strike and, as will hereinafter be noted, the motion was granted.

The record shows that on November 19, 1941, the trial court made the following

nunc pro tunc

order as of May 8, 1941: “Demurrer of cross-defendant Provident Land Corporation to the cross-complaint is overruled; demurrers of cross-defendants George H. McKaig and E. 0. Kaufmann, as members of Bondholders’ Protective Committee of Provident Irrigation District are overruled as to the first cause of action and sustained as to the second cause of action; demurrers of George H. McKaig, W. G. Aldenhagen and E. 0. Kaufmann individually to first and second causes of action sustained; leave is granted to cross-complainant to file amended cross-complaint if so advised.”