Smith v. Chin Chew

PLUMMER, J.

The plaintiff began this action by filing a complaint against the defendant Chin Chew. Thereafter a first amended complaint was filed, bringing in the defendant Chun Hee Tong. The amended complaint bringing in the defendant Chun Hee Tong is, after the title, in words and figures following:

“Plaintiff complains of defendants and alleges:

“I.

“That defendants became indebted to plaintiff within the four years last past in the sum of $427.55, of which sum $295 was for rent of land furnished to defendant Chun Hee Tong and $132.55 was for labor and services and wood furnished to defendant, Chin Chew, all at the special request of defendants, who are partners.

“That no part of said sums has been paid except $-, and that the sum of $-, is unpaid, due and owing.

“Wherefore, plaintiff prays judgment against defendants in the sum of $-- and for costs of suit.

“ (Signed) C. D. McComish,

“Attorney for Plaintiff.”

Upon the case being called for trial, the plaintiff dismissed his action as against the defendant Chin Chew and thereupon asked and obtained of the court leave to amend his complaint by inserting the figures $238.35 and $139.30, making the last paragraph of his complaint read as follows:

“That no part of said sums has been paid except $238.35, and that the sum of $139.30, is unpaid, due and owing.”

Thereupon the defendant Chun Hee Tong, through his counsel, moved that the action as against him be dismissed. This motion was denied. Later in the proceedings the motion was renewed on the ground that the court had no jurisdiction. This motion was also denied. During the

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course of the trial the following exhibit was introduced in evidence:

“Colusa, Cal., Nov. 13, 1925.

“Received of A. A. King the sum of Three Hundred Dollars in full of all claims against Chin Chew and I agree to release the attachment against said • Chin Chew’s property in the ease of H. Smith vs. Chin Chew.