Walker v. Etcheverry

KLETTE, J., pro tem.

This action was instituted by plaintiffs and respondents Thomas E. Walker, Leon Walker, and Clara Mae Walker, minors, by and through their mother, Roxie Walker, now Roxie Coree, as guardian

ad litem,

to recover for the death of their father, Thomas W. Walker, through the alleged negligence of Filbert Joe Etcheverry and Mariana Etcheverry, defendants and appellants. An amended complaint was filed by plaintiffs, to which a general demurrer was interposed by defendants. This demurrer being overruled, an answer to the amended complaint was duly filed. The case was then regularly set for trial on June 27, 1939, on which day defendants and appellants, by leave of the court, filed an unverified amendment to their answer, alleging for the first time, misjoinder of parties plaintiff, because all of

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the heirs of Thomas W. Walker were not joined as plaintiffs, in that Roxie Walker, the widow of Thomas W. Walker, was not joined.

Trial was had on that date before the court, sitting without a jury, and judgment was rendered in favor of the three minor children of deceased, for $4,740. Findings and judgment were filed August 7, 1939, and a motion for a new trial was made and set for hearing on August 28, 1939.

On September 6, 1939, a second amended complaint was filed, which for the first time, contained the following allegation:

“That said plaintiff, Roxie Goree, formerly Roxie Walker, was not at the time of said accident dependent upon said Thomas W. Walker, the deceased, and does not claim nor has sustained damage by reason of the death of said Thomas W. Walker, but joins herein as party plaintiff as an heir of said deceased for the purpose of complying with the provisions of Section 377 of the Code of Civil Procedure of the State of California.”

On the same day the court denied the motion for a new trial, and in its order recited the filing of the second amended complaint, by leave of the court, and stated that Roxie Goree, formerly Roxie Walker, was a necessary party plaintiff to the action, and ordered an addition to the findings already made, as follows:

“That said plaintiff, Roxie Goree, formerly Roxie Walker, was not at the time of said accident dependent upon said Thomas W. Walker, deceased, and that she does not claim nor has she sustained damage by reason of the death of said Thomas W. Walker.”