McOmie v. Board of Directors of the Veterans' Home

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WEYAND, J., pro tem.

By complaint filed in the supe

rior court of Napa County on March 9, 1925, the above-named plaintiff alleged that Samuel W. Backus, Hugh M. Burk, B. A. Forsterer, E. L. Hawk, E. B. Hinman, Harry E. Speas, and Walter D. Wagner were the trustees of the Veterans’ Home of California, and that C. de Colmesnil was the secretary-treasurer of said Home. Plaintiff further alleged that one Henry McOmie, the father of plaintiff, died in Napa County on or about April 28, 1922, being at the time of his death a resident of Napa County and an inmate of said Veterans’ Home. That at the time of his death McOmie, the deceased, had on deposit with defendants herein the sum of $794.38. It is further averred that plaintiff herein was the son and only heir of the deceased, and the only person entitled to any share in the estate of said deceased. It is then alleged that said defendants are holding said sum of money “until the same is claimed by any heirs at law of said Henry McOmie, deceased,” and, by further allegation, that said plaintiff “demanded of said defendants the payment of all of said moneys to him . . . but the defendants have refused and still continue to refuse to pay plaintiff said moneys or any part thereof.”

The prayer to said complaint is worded as follows: “Wherefore plaintiff prays judgment against said defendants for the sum of $794.38, and interest and costs of suit.” To this complaint there was interposed, in due time, a general demurrer. This demurrer came up for hearing, and thereupon the judge of the trial court ordered inserted in said complaint an allegation that plaintiff had “submitted to defendants proper proof of heirship to Henry McOmie, deceased, and his right to be paid said moneys,” and then ordered the demurrer overruled and granted defendants ten days within which to answer said complaint. Defendants did not answer, and upon the entry of their default the clerk of the said court entered a pretended judgment herein without order or direction of or from the judge of said court, and without the taking of any testimony by the court as to the truth of the allegations of the complaint.

Defendants have appealed from said judgment, and the case is presented in this court upon the judgment-roll, duly certified by the clerk of the superior court of Napa County.

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