Lindsey v. Superior Court

THE COURT.

An original application for a writ of prohibition to the Superior Court of the City and County of San Francisco, directing said court to desist and refrain

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from further proceedings in an action pending therein, which was commenced on November 10, 1925, by Katherine Horton against George and Emma Lindsey, and is numbered 163152 according to the register of actions in said court. The suit was for the rescission, on the ground of fraud, of a contract for the purchase by plaintiff of the furnishings of an apartment house, the recovery of sums paid by her thereon and for damages.

A summons was issued, but, so far as appears, was not served upon the defendants. Thereafter, on September 13, 1927, the plaintiff was adjudged to be an incompetent person, and P. G. Sanborn was duly appointed and qualified as the guardian of her estate. On June 23, 1928, respondent, upon the application of the guardian, made an order for his substitution as plaintiff in the action, and on June 26, 1928, an amended complaint was filed therein, stating the same facts as appeared in the original complaint, with the additional fact of the appointment of Sanborn as guardian. The amended complaint, however, was entitled “P. G. Sanborn, guardian, on behalf of Katherine Horton, an incompetent person, plaintiff, ’ ’ the name of the incompetent being omitted in the caption, although the pleading alleged that the same was filed on her behalf, and one W. E. Bivens, alleged to have been an agent of the principal and certain fictitious defendants in the transaction, was also joined as a defendant.

Thereafter, on July 24, 1928, there was filed a second amended complaint with the same caption and containing substantially the same allegations of fraud as those appearing in the original and first amended complaint. On July 27, 1928, defendant Bivens filed his answer “to the amended complaint, ’ ’ denying the material allegations therein, and on September 6, 1928, defendant George and Emma Lindsey filed their joint general demurrer to the “second amended complaint,” alleging, also, that the pleading was uncertain in the particulars specified in the demurrer. An answer, putting in issue the material allegations of the amended pleading, was filed by them at the same time, and the demurrer having been overruled the parties on December 18, 1928, proceeded to trial.