Hurley v. Lake County

PULLEN, P. J.

Plaintiff brought an action to recover for personal injuries. A demurrer to her complaint was interposed by defendants and by the court overruled. Thereupon defendants answered and in due time the cause was set for trial. Upon the day so set, plaintiff failed to appear either in person or by counsel, and the court entered its judgment of dismissal. Upon appeal the judgment of dismissal was reversed on the ground that plaintiff had not received proper notice of the date of trial.

In its opinion, this court, speaking through Mr. Justice Plummer, said:

“As the case must go back for retrial, it seems to us proper to call attention to the case of

Benton

v.

City of Santa Monica,

106 Cal. App. 339 [289 Pac. 203], and the authorities there cited, where this court had occasion to consider the sufficiency of a complaint against a municipality on account of negligence. While the clerk’s transcript shows that the demurrer to the plaintiff’s complaint was overruled, it appears from the case which we have cited that the complaint is manifestly insufficient, and should be amended, if the facts warrant such action.” (113 Cal. App. 291, 298 Pac. 123, 125.)

In accordance with this opinion, plaintiff at the proper time, moved for leave to file an amended complaint, but permission so to 'do was by the court denied.

After an interval of approximately a year from the receipt of the

remittitur

in the above-entitled matter, no judgment upon the original complaint having been entered in favor of defendants, plaintiff caused the case to be again placed upon the trial calendar, and the same was set for trial on the original complaint for September 6, 1932. On September 4th, two days prior to the trial date, a telegram was transmitted to the clerk of the court stating that one of counsel for plaintiff was ill and unable to be present and requested a continuance.

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