Walton v. County of Kern

BARNARD, P. J.

This is an action for damages for a death which, it is claimed, resulted from the improper manner in which a road was maintained by the defendant.

The accident and death in question occurred on December 24, 1937. A claim was filed with the defendant county on February 1, 1938, and it is conceded that no order was ever made by the supervisors with respect to rejecting or allowing the claim.

The complaint was filed on March 7, 1938, and an answer was filed in April, 1938, the exact date not being disclosed by the record. On April 4, 1939, the defendant filed notice of motion for a judgment on the pleadings on the ground that the action was prematurely filed since the supervisors had had ninety days in which to allow or reject the claim. On April 6, 1939, the plaintiff filed notice of motion for permission to file a supplemental complaint, which was attached thereto, and which included an allegation that the claim had been rejected by the failure of the board of supervisors to act upon it within ninety days after it was filed. The two motions were heard together, the motion for leave to file a

[34]

supplemental complaint being denied and the motion for judgment on the pleadings being granted. The plaintiff has appealed from the judgment.

The general rule is that where an action is prematurely brought, and the original complaint must fall, a supplemental complaint has no place as a pleading.

(Morse

v.

Steele,

132 Cal. 456 [64 Pac. 690];

Lewis

v.

Fox,

122 Cal. 244 [54 Pac. 823].) Ordinarily, a plaintiff’s cause of action must have arisen before the filing of the complaint and he may not recover in a cause of action arising after the suit is filed.

(Kirk

v.