Brun v. Evans

California Court of Appeal Nov 29, 1926 No. Docket No. 5534.Published

Before: Nourse

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Holding. The court affirmed a judgment awarding a plaintiff the return of a security deposit, minus acknowledged debts, finding no abuse of discretion in the denial of an amended answer and no prejudice from technical errors in the trial court's findings.

Issues

Whether the denial of a motion for change of venue can be reviewed on appeal from the judgment when notice of appeal from the order was not timely filed.
Whether the trial court abused its discretion in denying a motion for leave to file an amended answer after the cause was submitted.
Whether the trial court's failure to find that the security deposit was forfeited resulted in prejudicial error.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Motions of this nature are primarily within the discretion of the trial court and its orders will not be disturbed unless such discretion is plainly abused.”

“though the finding may be technically incorrect, it is apparent that no prejudice resulted from it”

NOURSE, J.

Plaintiff sued to recover the sum of $2,000 paid to the defendants as security for the performance of the covenants and conditions of a certain lease of real and per

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sonal property between the parties. Plaintiff had judgment for $1,555.56 and the defendants have appealed on a typewritten record.

The lease contained the condition that the sum of $2,000 was to be paid “as security for the performance of all the covenants and conditions herein contained ... to be returned by said Lessors to said Lessee when the term of this lease shall have expired, but is to be forfeited should any of the terms or conditions of this lease be broken by the said lessee.” The trial court found that the lease was terminated by mutual agreement and that at that time the plaintiff owed the defendants the sum of $444.44. This sum was deducted from the amount sued for and this accounts for the judgment as rendered. The points advanced by appellants will be treated in order.

The order denying appellants’ motion for a change of venue was based upon conflicting affidavits. Appellants insist that the motion should have been granted. The order is one from which an appeal may be taken (sec. 963, Code Civ. Proc.) provided notice thereof is given within sixty days from entry of the order (sec. 939, Code Civ. Proc.). This was not done and the merits of the order cannot be considered on this appeal from the judgment. (Sec. 956, Code Civ. Proc.;

Bohn

v. Bohn, 164 Cal. 532, 539 [129 Pac. 981].)

About ninety days after the cause was fully tried and submitted to the trial court for decision the appellants asked leave to file an amended answer. The proposed amendment was based upon some parol testimony offered by the appellants in contradiction of the express writings made at the time of the termination of the lease. The trial court refused the application for leave to amend and this is assigned as error. Motions of this nature are primarily within the discretion of the trial court and its orders will not be disturbed unless such discretion is plainly abused. (21 R. C. L. 572, 594.) We are satisfied that in this instance this discretion was properly exercised.

Brun v. Evans

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NOURSE, J.

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