Brittan v. Oakland Bank of Savings

Harrison, J. After a demurrer to the original complaint had been sustained by the court the plaintiff filed an amended complaint. Upon the motion of the [2]defendant the court struck out certain portions of this amended complaint on the ground that they were irrelevant and redundant. Thereafter the plaintiff filed a second amended complaint, to which the defendant answered, and' subsequently, having obtained an order substituting the appellant for the original plaintiff in the action, filed a third amended and supplemental complaint, to which the defendant filed its answer, denying many of the allegations in the complaint. Subsequently, the defendant filed certain amendments to its answer, and set up a separate and special defense. The plaintiff demurred to this special defense, and his demurrer having been overruled, the cause was tried by a jury who rendered a verdict in favor of the defendant. From the judgment entered thereon the present appeal is taken upon the judgment-roll alone. It contains a bill of exceptions relative to the order striking out certain portions of the first amended complaint, but there is no bill of exceptions relating to the trial, or showing the evidence upon which the verdict was rendered. The appellant in his brief seeks a review by this court of the order sustaining the demurrer to the original complaint, the order striking out certain portions of the first amended complaint, and the order overruling his demurrer to the special defense in the answer.

1. The amended complaint which was filed after the demurrer to the original complaint had been sustained superseded the original complaint, and the error, if any, committed in sustaining the demurrer was thereby waived. (Gale v. Tuolumne Water Co., 14 Cal. 25; Ganceart v. Henry, 98 Cal. 281.) For the same reason the subsequent filing of another amended complaint, upon which the cause was tried, whereby the cause of action was substantially varied, waived any error committed in striking out portions of the complaint which was thus amended. The grounds upon which these portions were struck out of the complaint was that they were irrelevant and redundant, and the appellant has not pointed any respect in which they are relevant to his [3]cause of action. The third amended complaint, upon which the cause was tried, was in favor of the substituted plaintiff, and, as it was against respondent alone, operated as a discontinuance of the action against the other defendants. Many of the averments that had been struck out had relation to only those defendants who had thus ceased to be parties to the action, and other portions were in fact included in this third amended complaint. If the plaintiff had desired to have the correctness of this order reviewed, he should have included those averments in the complaint upon which the action was tried, so that their relevancy to the cause of action, which he finally presented for trial, might be determined.