Sheehy v. Roman Catholic Archbishop

JONES (B. C.), J. pro tem.

This is an appeal by the plaintiff from a judgment in an action to recover damages for the death of his minor son. The basis of the action is an injury claimed to have been inflicted upon the child by other students while at play upon the grounds of St. James School. It is alleged that at the time of the injury the St. James School was in charge of the Dominican Order of Sisters under an arrangement with the Rt. Rev. P. J. Quinn, pastor of St. James Church, and that the school and church operated under the direction of the Roman Catholic Archbishop of San Francisco. When the case was called for trial the appellant dismissed the action as to all of the defendants except the Rt. Rev. P. J. Quinn, the respondent herein. He then de

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clined to offer any evidence in support of his amended complaint and judgment went for the defendant. The plaintiff places his reliance entirely upon a default of the defendant entered upon the original complaint.

The action was commenced on November 13, 1935, and on November 15th the complaint and summons were served on the respondent. He failed to appear and on December 11, 1935, his default was entered. The Roman Catholic Archbishop of San Francisco, a corporation sole, one of the other defendants, appeared and entered a general demurrer to the complaint and noticed a motion to strike certain portions thereof. On January 2, 1936, this general demurrer was sustained with leave to amend, and the motion to strike granted. The plaintiff filed an amended complaint on January 9, 1936. This amended complaint was not served on the respondent until October 25, 1937, and was answered by him on December 2, 1937. The trial resulting in the judgment appealed from was had on December 27,1939, approximately two years after answer to the amended complaint.

After the amended complaint was filed on January 9, 1936, and before it was served on the respondent on October 25, 1937, and on the 11th day of September, 1936, the default of the respondent was again entered for his failure to answer the original complaint. At this time the plaintiff also asked the court to enter judgment against the defendant on the second default. This request for judgment was submitted by the court, and later an order, ex parte, was made setting aside the default and also the order of submission. This order was made on October 15, 1936. When the case was called for trial the plaintiff moved that this order be set aside. This motion was denied, the order of denial being incorporated into and made a part of the judgment appealed from.