Winchell v. Strawbridge

PRESTON, J.

This is an appeal from a judgment for ,defendants based upon an order sustaining both general and special demurrers to the amended complaint, plaintiff having declined the opportunity offered by the court to amend his pleading a second time.

The so-called amended complaint is an anomaly, being in reality but a jumble of conclusions. No one word or phrase would properly characterize or serve to define the attempted cause of action. The attorney for appellant himself describes it as follows: “This action was brought against a justice of the peace, a corporation and two lawyers in’San Francisco for unlawfully altering the books and records of said corporation, and for deceit, fraud, collusion and conspiracy to thereby cheat and defraud the plaintiff herein. ...” Later in his brief he seems to call it an action for malicious prosecution. The pleading would appear to be an effort to state a combination of various causes of action, to wit, a suit for a civil conspiracy mixed with a suit for malicious prosecution upon which is superimposed a privately conducted criminal prosecution under section 563 of the Penal Code.

The document has as its prelude ’ a short biographical sketch of each defendant, with a vitriolic recital of the alleged nefarious part he played in the drama. The facts gleaned from this dramatic effort seem to be that plaintiff, C. H. Winchell, during the time in question operated a garage business known as the Winchell Garage in San Andreas, Calaveras County, California. He denies that he did more than to “operate” the institution without defining the word, other than to say that he never at any time owned the same or any interest therein. Defendant Gates Company, a corporation, was doing business presumably at San Francisco, and claimed to have sold goods, wares, and merchandise to plaintiff and to one Annie E. Winchell in the sum of $345.72. The claim of the corporation for said sum was assigned for collection to C. W. Strawbridge, who thereafter reduced it to the jurisdiction of the justice’s court,

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and on the twenty-fifth day of February, 1924, sued both C. H. and Annie B. Winchell in the justice’s court of the city and county of San Francisco for said debt. Service of summons was quashed and later a suit was brought by the same party against the same defendants in the justice’s court of San Andreas township, county of Calaveras, California, which latter court was presided over by the defendant C. F. Walter. Why the justice of the peace at San Francisco in whose court the cause was begun was omitted as a defendant cannot be ascertained from the document; however, the attorney for plaintiff in both said actions is made a defendant herein.