Tokar v. Redman

NOURSE (Paul), J. pro tem.

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By his amended complaint in this action, appellant sought to recover from the respondent Normandie Club and others certain monies which it is alleged were paid to the respondent by the defendant Redman in payment of gambling losses. It also purports to seek declaratory relief. Respondent’s demurrer to the amended complaint was sustained with leave to amend. Appellant refused to amend and judgment of dismissal was entered, from which appellant appeals.

So far as relevant to the disposition of this appeal, the facts alleged by the amended complaint are as follows:

That in February, 1953, the defendant Redman became indebted to appellant in a sum in excess of $3,000, and that this claim was reduced to judgment on the 25th of February, 1954; that the respondent was at all times mentioned in the amended complaint conducting and operating a gambling establishment and that during the year 1953 the defendant Redman participated in gambling games to wit: poker, (low) ball poker, draw poker, blackjack and other gambling games with respondent, its servants, agents and employees, with two other named defendants and with other persons whose names are unknown to plaintiff, but are alleged to be known to the respondent; that these gambling games took place two or three times a week during the year 1953, and that in them Redman lost to the respondent, and the other persons with whom he gambled, a sum in excess of $3,000, and that as a result of such loss Redman rendered himself insolvent and unable to pay his just debts. It is further alleged that a justiciable issue has arisen between the parties in that the appellant claims that the defendant Redman, while indebted to the appellant, gambled away to respondent and the others above mentioned with whom he gambled, a sum in excess of the amount to which he, Redman, was indebted to appellant, and that the respondent and the others with whom Redman gambled parted with nothing of value and should not be permitted to profit at the expense of Redman’s creditors;

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that the respondent and the other defendants contend that since these were gambling losses the defendant Redman cannot recover them, and that, therefore, appellant cannot.

By the prayer to the complaint, appellant asks the court to declare that low ball poker, draw poker and blackjack are gambling games; that the premises of respondent and the premises of two of the other defendants are used for gambling purposes; that the money lost to respondent, and the others with whom Redman gambled, are gambling losses and for judgment against the defendants for the amount of appellant’s judgment against the defendant Redman.