Healy v. Stationers Corp.

California Court of Appeal Jul 22, 1964 No. Civ. 27873Published

Before: Roth

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Holding. The court held that a plea of prior action pending is inapplicable when the plaintiffs in the two suits are different, and that a trial court has discretion to hear a plea in abatement concurrently with other issues.

Issues

Whether a plea of a prior action pending applies when the plaintiffs in the two suits are not the same person.
Whether the trial court abused its discretion by failing to hear a plea in abatement before the merits of the petition.
Whether the failure to make express findings on all issues raised in an answer requires setting aside a judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is settled that a plea of a prior action pending applies only where the plaintiff in both suits is the same person and both suits are commenced by him.”

“It is clear that a plea in abatement may be heard either before the trial of other issues or along with the trial of other issues.”

“a judgment will not be set aside on appeal because of a failure to make an express finding upon an issue if a finding thereon, consistent with the judgment, results by necessary implication from the express findings which are made.”

ROTH, J.

On or about March 13, 1963, respondent Healy, prior to filing the same with the court, served appellants with a petition for a writ of mandate seeking to enforce his right, as a director of appellant corporation, to inspect the books of the corporation. The petition for the writ was not filed with the Superior Court of Los Angeles County until March 28, 1963. Prior to the filing of respondent’s petition and on March 22, 1963, appellants Lillian W. Boyd and Omar E. Boyd, Jr. filed a separate action in the Superior Court seeking the removal of petitioner from the board of directors.

On April 4, 1963, an alternate writ of mandate was issued by the court, ordering appellants to produce the books and records of the corporation for respondent’s inspection or to show cause on April 12,1963, why they had not done so.

On April 11, 1963, appellants filed a demurrer to respondent’s petition and a motion to abate the action on the petition until there was a final determination re their removal action. The hearing on these motions was noticed for April 17,1963.

On April 12, 1963, a hearing was held on respondent’s petition. The trial court, over appellants’ plea for abatement asserted in their answer and argued at the hearing, issued the writ ordering inspection to commence on the morning of April 16.

On April 26, 1963, the court overruled appellants’ demurrer and motion to abate. On April 24, 1963, the court filed its findings of fact and conclusions of law reiterating respondent’s right to inspect the books of the corporation.

Appellants contend that the trial court erred in proceeding

[603]

with the hearing on respondent’s petition when the removal action filed was pending and undisposed of; and in any event that the trial court should have first determined the issue of law raised by the removal action before considering the petition on its merits.

It is settled that a plea of a prior action pending applies only where the plaintiff in both suits is the same person and both suits are commenced by him.

(Hamm

Healy v. Stationers Corp.

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ROTH, J.

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