Johnson v. Sun Realty Co.

[383]

WASTE, C. J.

Motion to dismiss.

Plaintiff instituted this action in the Superior Court in and for the County of Los Angeles to reform a written instrument and to enjoin the prosecution of an action then pending between the same parties in the municipal court of that county. The defendant Sun Realty Company demurred generally and upon the further ground that the complaint on its face showed that jurisdiction had attached in the municipal court to the exclusion of the superior court. This demurrer was sustained without leave to amend and the plaintiff appealed. Since the taking of the appeal the municipal court action terminated with the entry of a judgment against the appellant herein.

The defendant and respondent Sun Realty Company now moves to dismiss the appeal, urging that by reason of the termination of the municipal court action in a manner adverse to the appellant herein, the present appeal is now moot.

Examination of the complaint satisfies us that it is good as against general demurrer. The court below in sustaining the demurrer thereto without leave to amend must, therefore, have concluded that the issues involved in the municipal court action were analogous to or .identical with the issues involved in this action. By the prosecution of the present appeal the plaintiff has necessarily questioned the propriety of the trial court’s conclusion in this particular and the ruling based thereon. To grant respondents’ motion and dismiss the present appeal on the ground that the termination of the municipal court action had made the subject matter hereof moot, would be to decide that the issues raised in this action were involved in and determined by the municipal court proceeding. To so decide would be to pass on the merits of the appeal. We have repeatedly declined to investigate and consider the merits of an appeal upon a motion to dismiss.

(Christin

v. Story, 211 Cal. 381, 382 [295 Pac. 515] ;

United States

v. Ackerman, 208 Cal. 99, 101 [280 Pac. 359].)

The motion to dismiss the appeal is denied.