Kirby v. Superior Court

Thornton, J. — Application for a writ of prohibition. In the action of Johnson et al. v. Kirby et al., in the Superior Court of Nevada County, the plaintiffs filed an amended complaint, to which defendants demurred. The demurrer was sustained, and plaintiffs herein refused to amend, thereupon judgment was entered for the defendants. From this judgment plaintiffs appealed to this court, where the judgment was affirmed. (Johnson v. Kirby, 65 Cal. 482.)

[605]After the affirmance of the judgment, and more than one year after the entry of the final judgment, the Superior Court above named, on motion of plaintiff Johnson, made an order vacating the judgment, and allowing plaintiffs to file another amended complaint, and now threatens to proceed to try said cause, notwithstanding the final judgment affirmed as aforesaid. To prevent this a writ of prohibition is asked for.

We are of opinion the writ should be allowed. The plaintiffs had an opportunity to amend prior to the appeal. This they declined to do, preferring to stand on the complaint as they had shaped it, and resort to the remedy of appeal from the judgment. This they tried, and the appeal was determined against them. It would be the height of injustice now to allow the plaintiffs, after trying the remedy by appeal, and having been cast on it, to do that which they had refused to do when it was submitted to their option. The judgment which they appealed from having been affirmed, there is an end of the litigation. The defendants having gained the suit in the course adopted by plaintiffs, the plaintiffs should not be allowed to turn round and say we should be allowed to try the course which they refused to adopt when it was in their power to adopt it. Such inconsistent action is likened to blowing hot and cold with the same breath, which a court of justice always discountenances and disallows. (Broom’s Legal Maxims, Allegans contraria, etc., p. [169].)

It is said the order allowing the amendment is an appealable order. Conceding it is, we do not think the defendants should be put to the delay and expense of an appeal. This remedy, while it would be adequate, would not be speedy. (Merced M. Co. v. Fremont, 7 Cal. 130; S. C., 68 Am. Dec. 262.) The plaintiffs, under the state of facts above presented, should not be put to the delay of an appeal. The cause is a plain one, and we are convinced the court has no power or discretion after final judgment