Start v. Heinzerling

THE COURT.

In this action the plaintiff sought to recover the sum of eight hundred and thirty dollars. Two causes of action were separately pleaded, one for moneys had and received, and the other for damages alleged to have resulted to the plaintiff from a conspiracy claimed to have been entered into by the defendants against the plaintiff. The appeal is by the plaintiff from a judgment of dismissal, entered upon the theory that the plaintiff had failed to amend his complaint within the time granted after an order had been made sustaining the defendant’s demurrer.

Incidentally the plaintiff complains of orders made intermediate the judgment, which present a peculiar entanglement of the procedure employed in the attempted adjudication of the subject-matter of the action. In this connection the record shows that service of summons was made upon the defendant Florence Heinzerling by publication. After the statutory time allowed her to appear and defend had expired, she procured an order giving her an extension of two days’ time within which to plead to the plaintiff’s complaint. Thereafter and before the two days’ extension of time had expired, her default was entered, apparently upon the theory that the order extending her time to plead had been inadvertently and improvidently made. Subsequently, however, the

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defendant’s default was set aside upon motion, which, although supported by an affidavit which tended to show that her default was due to excusable neglect, was not accompanied by an affidavit of merits.

Upon the opening of the default the defendant interposed a demurrer to the complaint upon the grounds that it did not state a cause of action, and that a cause of action upon a contract was improperly united with a cause of action upon an alleged tort. The demurrer was sustained, and within the time granted the plaintiff’s cause of action for damages was upon his motion ordered stricken out and dismissed. The plaintiff, however, deeming it necessary that the court should reconsider its ruling upon the demurrer, a motion to that effect was granted upon the condition that the plaintiff file an amended complaint within a specified time. The plaintiff failed to comply with the condition, and a judgment of dismissal was accordingly entered against him.