Fisch & Co., Ltd. v. Superior Court

SCOTT, J.,

pro tem.

Petitioner seeks a writ of mandate directed to respondents requiring them to take certain action desired by petitioner in case number 373593, filed by the latter as plaintiff in respondent court. The suit is against the Los Angeles Gas & Electric Corporation and the Department of Water and Power of the city of Los Angeles (hereinafter referred to for convenience as defendant city) for damages alleged to be due to their negligence in letting their respective high power electric lines drop and come in contact with power lines furnishing electricity to plaintiff, thereby causing a fire. When issue was joined and the trial commenced before respondent judge with a jury, plaintiff put on its ease and at the conclusion thereof the gas and electric corporation moved for a nonsuit, which was granted on the ground that there was no evidence upon which said corporation could be held liable. The trial proceeded against defendant city, and several days later the court decided that the defendant gas and electric corporation was a necessary party to the case in order to effect a complete adjudication of the issues. The jury then engaged in trying

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the case was discharged, permission to file an amended complaint identical with the original pleading was granted, with provision that an

alias

summons issue to bring back said corporation into the ease, and it was then sent back to the calendar department of respondent court to be reset for trial when ready. An amended complaint was filed and summons was issued and served on defendant corporation. The latter served and filed a demurrer thereto and a notice of motion to vacate and set aside the order requiring defendant Los Angeles Gas & Electric Corporation to be made a party to the action and permitting the amended complaint, to strike same from the.files as to said defendant and to quash summons. Upon hearing the said motions were granted. Petitioner, plaintiff in said action, asks that respondent court be required to assume jurisdiction as to said defendant gas and electric corporation and proceed to trial on the amended complaint.

When the order of nonsuit was entered by the clerk in the minutes pursuant to the order of the trial court, it was effective for all purposes and became a final judgment, even though it was not a judgment on the merits as contemplated by section 582 of the Code of Civil Procedure. (Code Civ. Proc., sec. 581;