Knox v. Superior Court

HOUSER, J.

So far as this proceeding is concerned, the essential facts are that in an action instituted by petitioner Knox in the Superior Court of the County of Riverside (No. 17914 of the files of said court) against one Wyman and Title Guarantee and Trust Company, a corporation, each of said defendants failed to answer the complaint therein, and the default of each of them was regularly taken and judgment entered. About five months later, under the provisions of section 473 of the Code of Civil Procedure, Title Guarantee and Trust Company, a corporation,

as trustee,

and one Aamoth, individually (the latter of whom claiming as assignee of the rights of defendant Wyman in the subject matter of the action), served the plaintiff in said action with a notice that on a specified date, which was more than six months after the default in the action had been taken, they would move the trial court to vacate the default and the judgment entered in the action. On stipulation of the parties, several continuances of the hearing of the motion were ordered by the trial court; but the motion was finally granted. Thereupon, as against Title Guarantee and Trust Company, a corporation,

as trustee,

and Aamoth, individually, the plaintiff filed an amended complaint in the action, wherein, in addition to the original cause of action, he set up a second count. Later, plaintiff moved the trial court to vacate its former order by which the default of the original defendants was vacated—which motion was by the court denied. The substituted defendants then answered the amended complaint and at the same time set up facts from which they demanded affirmative relief. On motion of the plaintiff the cause was then set for trial. Thereafter the plaintiff attempted to file with the clerk of the court a dis~

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missal of the action so far as the amended complaint differed from the original complaint as to parties and subject matter. The clerk refused to file said dismissal, but, on request of the plaintiff, permitted it to remain in the office of the clerk. In view of such facts, petitioner here seeks a peremptory writ of prohibition in the action pending in the lower court by which said court shall be restrained from proceeding to a trial thereof, or from talcing or permitting further or other proceedings therein.