Cheatham v. Municipal Court

THOMPSON (IRA F), J.

This is an application for the writ of mandate by which it is sought to compel the respondent court to dismiss an action in unlawful detainer. The alternative writ was not • issued, the petitioner preferring to bring the matter on for hearing upon notice to the respondent. Prom the petition it appears that D. W. Henderson filed a complaint in the municipal court (the petition fails to state the date), alleging a sale of certain property pursuant to the terms of a trust deed executed by the defendant, the petitioner herein; that the plaintiff became the purchaser thereat; that the plaintiff had served the defendant with a notice to vacate which she had refused to do; that he had been damaged in the sum of $50, the rental value of the property ■ to the time of the filing of the complaint; and that the rental value of the property was $35 per month. The defendant in that action, the petitioner here, interposed a demurrer to the complaint on the grounds (so far as we are able to judge from the very ambiguous pleading) that there was an action pending between the same parties in the superior court involving the ownership and possession of the property, and that the value of the real property was more than $3,000 and hence the court had no jurisdiction of the action. A pleading denominated an answer was also filed setting up

verbatim

the same matter contained in that which was called a demurrer, and no more. The demurrer was overruled and after trial held on November 10, 1930, judgment was rendered in favor of the plaintiff for the possession of the property and $35. On August 12, 1930, the petitioner filed a complaint in the superior court against Henderson and others, alleging that she had entrusted certain real and personal property to defendants as security, and that the defendants had failed to account to plaintiff for it but had sold the property and embezzled the proceeds, and praying for a return of the property'.or for a reasonable compensation in the sum of $17,000 together with a like sum for “intentionally and maliciously taking, detaining, converting, embezzling said property and conspiring to wrongfully deprive plaintiff thereof.” Henderson interposed a general demurrer which was sustained by the court on August 27,

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1930, with ten days to the plaintiff there, the petitioner here, to amend. Plaintiff filed no amended complaint and for her default in that particular the motion of the defendant Henderson for judgment was granted, and the cause dismissed on September 22, 1930. On November 25, 1930, plaintiff gave notice that she appealed from the judgment in