Keeler v. Schulte

SPENCE, J.

This is the second appeal in this case. By a representative suit on behalf of San Diego Lodge Number 1, American Section of The Theosophical Society, a California corporation, plaintiff seeks to set aside a deed of the lodge property and to enjoin the attempted dissolution of the lodge. The action was tried and judgment was entered for defendants. Plaintiff moved for a new trial, and it was granted on the grounds of insufficiency of the evidence and that the decision was contrary to the law. On defendants’ appeal, the order granting a new trial was affirmed.

(Keeler

v.

Schulte,

119 Cal.App.2d 132 [259 P.2d 37].)

Plaintiff then amended his complaint, alleging the same general facts but asking additional declaratory relief by way of an accounting and the appointment of a receiver to take charge of the property of the lodge pending disposition of the action. Defendants demurred generally and specially to the amended complaint, and moved to strike portions thereof. The trial court overruled the demurrers and struck out an immaterial part of the amended complaint. Defendants then answered and filed a counterclaim for certain money and property of the lodge.

The second trial began and some evidence was received. Then the trial court decided that anticipated lengthy and “acrimonious” testimony as to “alleged slanderous statements” at the time of the claimed dissolution of the lodge should be presented to a referee for findings. Both plaintiff and defendants were ordered to advance $700 for costs. Plaintiff failed to make the required deposit. Defendants renewed their motion to strike and demurrers. The motion was granted and the demurrers were sustained with leave to plaintiff to amend his complaint. The claimed insufficiency of plaintiff’s pleading was the failure to include the lodge as a party to the action. Plaintiff declined to so amend, and defendants moved

[803]

to dismiss the action. The trial court agreed with defendants that plaintiff’s complaint failed to state a cause of action because of the failure to include the lodge as a party, and that therefore no judgment could be entered declaring its rights or setting aside the deed. Accordingly, a judgment of dismissal was entered, and plaintiff appeals therefrom. We have concluded that the trial court’s judgment should be affirmed.