Plocher v. Superior Court

PULLEN, P. J.

This is an application for a writ of prohibition. The original action was brought in the superior court by petitioner Karl Plocher as plaintiff against Dalel Singh for damages to his automobile and loss of use thereof, arising from a collision between an automobile owned and operated by Dalel Singh and a car owned by Karl Plocher. To this complaint Dalel Singh filed an answer and cross-complaint. Karl Plocher, answering the cross-complaint, denied negligence, and upon the issues thus presented the cause proceeded to trial. During the process of the trial it developed that at the time of the accident the car, although the property of Karl Plocher, was then being operated by John Plocher in the absence of Karl Plocher, upon his own business but with the consent of Karl Plocher. Thereupon Dalel Singh, the cross-complainant, asked leave to make John Plocher a party cross-defendant. Permission was granted and to this amended cross-complaint defendants demurred, John Plocher demurring especially, setting up the statute of limitations.

[339]

In the complaint it was not alleged that plaintiff was operating the automobile at the time of the collision, although in the answer to the original cross-complaint there was an allegation that the automobile was then and there being operated by plaintiff. More than a year had elapsed after the accident before it appeared during the trial that John Plocher was driving the car at the time of the accident.

At the conclusion of the trial it was ordered that Karl Plocher take nothing upon the issues raised by the complaint and answer thereto, and that Singh recover costs. It was further ordered that the demurrer to the supplemental cross-complaint be sustained and the demurrer of John Plocher to the supplemental cross-complaint be sustained without leave to amend, he to recover costs, and judgment was entered accordingly. Within the time prescribed by law, Singh moved for a new trial and also to vacate the judgment and to enter another and different judgment. After consideration respondent entered an order granting a new trial; denied the motion to vacate but set aside the order sustaining the demurrer of John Plocher to the amended and supplemental cross-complaint and entered an order overruling the same. From this judgment petitioners, plaintiffs herein, attempted to perfect an appeal, but inasmuch as section 963 of the Code of Civil Procedure, authorizes an appeal only from an order granting a new trial in an action or proceeding tried by a jury wherein such trial by jury is a matter of right, the proposed appeal would not lie. Petitioners therefore sought by this writ of prohibition to prevent respondents from further proceeding in the matter.