Taylor v. Darling

KERRIGAN, J.

This case was heard in this court before,

(Taylor

v.

Darling,

17 Cal. App. 232, [125 Pac. 249]). Plaintiff sued the defendant for the conversion of certain personal property. Defendant in her answer, in addition to denying

[102]

the material allegations of the complaint, set forth that she was a married woman not living separate and apart from her husband, and that her husband had not been made a party defendant to the action. The court found this allegation of the answer to be true, but nevertheless gave judgment against the defendant as prayed for in the complaint. On appeal to this court the judgment was reversed; and upon the going down of the

remittitur

the trial court, as directed by this court, vacated and set aside the judgment, and caused judgment to be entered against the plaintiff and in favor of the defendant for her costs. Plaintiff appeals from such judgment.

The plaintiff made no application to the trial court at any time for permission to file an amended complaint making the defendant’s husband a party defendant, and therefore cannot be heard in this court to complain, nor in fact does she complain, that the trial court abused its discretion in entering judgment against her.

(Saddlemire

v.

Stockton Savings etc.,

144 Cal. 650, 655, [79 Pac. 381];

Durrell

v.

Dooner,

119 Cal. 411, [51 Pac. 628];

Sutter

v.

City and County of San Francisco,