Sousa v. Capital Co.

DEVINE, J.

There are two matters to be disposed of in this opinion: first, the appeal of plaintiffs from a summary judgment which was rendered against them and in favor of defendant Edward P. Ryan, and, second, a motion by the other defendants in the ease to dismiss plaintiffs’ appeal on the ground that no judgment or appealable order had been made as to those defendants at the time of the notice of appeal.

As to plaintiffs’ appeal in the Ryan matter, our task is to

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do no more than to note that counsel for respondents conceded frankly, at oral argument, that he had not perceived that the affidavits in opposition to the motion for summary judgment contain all of the allegations which actually do appear therein, and that a triable issue was, in fact, created by the opposing affidavits. We see no reason for saying more on this point. The summary judgment in favor of Edward F. Ryan is reversed.

The motion to dismiss the appeal, made by defendants Capital Company and John Sassell and Edward F. Ryan, is upon the ground that the controversy has become moot in that, since taking of the appeal, judgment in favor of said defendants has been rendered and has become final.

The facts are these: On July 28, 1960, plaintiffs John R. Sousa, Hester M. Sousa and Central Office Building, a corporation, filed their second amended complaint against Capital Company, a corporation, Edward F. Ryan, John Sassell and several Does. Central Office Building, a corporation, has dismissed its cause. It is unnecessary to describe the rather lengthy complaint except to say, in a general way, that it has to do with an alleged conspiracy to defraud plaintiffs. Demurrer to this second amended complaint was sustained with leave to amend, and a motion to strike certain parts of it was granted, on November 21, 1960. The minute order, so far as it refers to the demurrer, as distinguished from the motion to strike, reads as follows: “. . . in respect to the Special Demurrer directed to the first cause of Action, the Demurrer is sustained as to Specifications VI, VII, VIII (and sub-paragraph of VIII) nominated a, b, c, d, f, g, i, j, q, r, x and y; as to the Second cause of Action, Paragraph XI, sub-paragraphs g and h; as to the Third Cause of Action, paragraph XIV, sub-paragraph d—15 days to amend after notice; ...”