Burgermeister Brewing Corp. v. Superior Court

PEEK, J.

This is a petition for prohibition or other writ to restrain respondent court from proceeding to try issues claimed by petitioner (to whom we shall refer as Burgermeister) to have been finally determined in former proceedings before the same court.

Originally Burgermeister instituted an action in the respondent court for sums alleged to be due on an open-book account by defendant Clyde A. Bowman, doing business as Bowman’s Beverage Company. Bowman answered admitting the indebtedness, but cross-complained setting forth four causes of action, two sounding in contract, the other two causes based upon the alleged tortious conduct and fraud of the petitioner.

The judgment, which was entered on the verdict of the jury, read as follows:

“We, the jury . . . find for the defendant and cross-complainant Clyde A. Bowman, . . . and against the plaintiff and cross-defendant San Francisco Brewing Corporation, and assess his damages as follows:

[370]

“1. For breach of contract, in the sum of $36040.00

“2. For fraud counts, in the sum of $ none

“3. On the Third or Fourth Causes of Action, punitive damages in the sum of $ none. ...”

Burgermeister then appealed to this court from the judgment “in favor of cross-complainant, . . . and against the cross-defendant, San Francisco Brewing Corporation, . . . and from the whole thereof. ...”

Following a reversal of the judgment by this court, a hearing was granted by the Supreme Court and on August 10, 1959, that court adopted the opinion of this court and in its order stated, “For the reasons given, the judgment is reversed.”

(San Francisco Brewing Corp.

v.

Bowman,

52 Cal.2d 607, 620 [343 P.2d 1].)

Upon return of the remittitur, the trial court allowed defendant Bowman to file an amended and supplemental answer, counterclaim and cross-complaint, by which Bowman sought to amend and revise the third and fourth causes of action as originally set forth. Burgermeister demurred generally to the amended answer and moved to strike the third and fourth counts of its counterclaim (the so-called “fraud counts”). On January 9, 1961, the respondent court overruled the demurrer and denied Burgermeister’s motion.