Gallagher v. Delaney (1858) · DecisionDepot

Gallagher v. Delaney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1858Published

Before: Baldwin

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Holding. The court held that the lower court erred by entering final judgment on a demurrer without first granting the plaintiff leave to amend the complaint.

Issues

Whether the court below erred in dismissing the complaint upon sustaining a demurrer without granting leave to amend.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The judgment should have been sustaining the demurrer, with leave to the plaintiff to amend; and, if he declined, then judgment final.”

“The complaint may be so amended as to present distinctly the plaintiff’s claim to the relief he seeks.”

Synopsis

It is error to render a final judgment on demurrer to plaintiff's complaint. Where the complaint is defective, the Court should sustain the demurrer, with leave to the plaintiff to amend his complaint,* and if the plaintiff then declines, judgment final should be given.

Baldwin, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring.

In this case, the Court below rendered final judgment on the defendant’s demurrer, and dismissed the complaint. The judgment should have been sustaining the demurrer, with leave to the plaintiff to amend; and, if he declined, then judgment final. The complaint is so drawn as to leave no little doubt as to the purpose of the pleader. • If the object be to enforce a trust, the complaint should so distinctly aver, and the prayer should correspond. The complaint may be so amended as to present distinctly the plaintiff’s claim to the relief he seeks.

Judgment reversed, and cause remanded, without costs.

Gallagher v. Delaney

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