Hurley v. Lake County

PULLEN, P. J.

Plaintiff filed a complaint to recover for personal injuries; to this complaint a demurrer was interposed and by the court overruled. Defendants answered and in due time the cause was set for trial. Plaintiff failed to appear at the time of trial and judgment of dismissal was entered. Upon appeal the judgment of dismissal was set aside

(Hurley

v.

Lake County,

113 Cal. App. 291 [298 Pac. 123, 125]) on the ground of the insufficiency of the notice of the trial. In its opinion the appellate court, in considering the complaint, said: “While the clerk’s trans-script shows that the demurrer to the plaintiff’s complaint was overruled it appears from the case which we have cited

(Benton

v.

City of Santa Monica,

106 Cal. 339 [289 Pac. 203]) that the complaint is manifestly insufficient and should be amended if the facts warrant such action. ’ ’

Thereafter, in accordance with the suggestion in the opinion, a notice of the motion was presented by plaintiff for leave to file her first amended complaint. The motion was by the court denied.

After such denial of the motion, no judgment having been entered in favor of defendant upon the original complaint, and no order sustaining a demurrer theretofore interposed having been made, plaintiff served a memorandum to set aside the cause for trial upon the original complaint. An order was made by the trial court setting the case for trial and fixing September 6th as the date therefor. On September 5th, the clerk of the court received a telegram from Mary I. Ashe, as follows: “San Francisco Calif via postal telegraph, Sept. 4, 1932. F. Merritt, County Clerk, Lake Co., Lakeport, Calif. My husband attorney F. L. Ashe counsel for Miss Abbie Hurley in action Hurley versus Lake County coming on trial tomorrow Sept sixth 1932 has become suddenly ill and is confined to bed by doctors orders must have continuance of above action please advise, am

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