Knott v. McGilvray

VAN DYKE, J. This action is to recover damages for the death of one Benjamin. Knott, and was originally instituted against Claus Spreckels and John D. MeGilvray. During the trial, on the motion of Spreckels, a nonsuit was granted as to him, and the case proceeded to judgment against the defendant MeGilvray. An appeal is taken from the judgment and also from the order denying the defendant McGilvray’s motion for a new trial.

The first contention of the appellant is, that the complaint does not state a cause of action, inasmuch as the surviving wife, as such, has no cause of action, but only the heirs of the deceased. By section 377 of the Code of Civil Procedure it is provided: “When the death of a person, not being a minor, is caused b.y the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such, other person.” The complaint alleges that the plaintiff is the surviving wife and widow, and that, at the time of his injury and death, as aforesaid, was the wife of said Benjamin Knott. Thei surviving wife is an heir of the decedent, and, by the law of sue-cession, “if the decedent leave a surviving husband or wife, and neither issue, father, mother, brother nor sister, the whole estate goes to the surviving husband or wife.” (Civ. Code, sec. 1386, subd. 5.) There is nothing in the record to show that there were any other heirs than the plaintiff. If it appeared upon the face of the complaint that there were other heirs who were not joined, the objection could have been taken by demurrer. If it did not appear upon the face of the complaint, but as a fact there were other heirs, their nonjoinder could have been taken advantage of by answer. The question of a nonjoinder was not [130]raised either by demurrer or answer in this case. “BE no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.” (Code.Civ. Proc., sec. 434.) Hence the appellant, realizing that the objection as to nonjoinder of other heirs, if there were any, has been waived, falls hack upon the contention that the complaint fails to state a cause of action. But the complaint clearly does state a cause of action and is sufficient to support the judgment.

Under said section 377 of the Code of Civil Procedure, the defendant Spreckels, as owner of the premises, was joined with the defendant McGilvray, upon the theory, doubtless, that he was considered responsible for the latter’s conduct. Spreckels appeared by his counsel, demurred to the complaint, which was overruled, and afterward separately answered. At the trial, after ■the evidence was in, upon motion of his counsel, a nonsuit was entered as to the defendant Spreckels, on the ground, as it would seem, that the defendant McGilvray was an independent contractor and alone liable. Defendant McGilvray thereupon moved the court, upon affidavit, to remove the cause as to him to the United States circuit court, on the ground that he was a citizen and resident of the state of Colorado. He further states in his affidavit that Claus Spreckels was fraudulently and improperly joined as a party defendant for the sole purpose of defeating the fights of said petitioner, McGilvray, to remove the cause to the United States circuit court; and that within ten days after the commencement of the action, on his application, the cause was removed to the circuit court, and that the same was remanded to the superior court on the ground of the joinder of said Spreckels, Who was a resident of this state, as a defendant with petitioner. The counter-affidavit denies that Spreckels was fraudulently joined as a party defendant, and alleges that the plaintiff believed, and still believes, that he is a proper party, and that McGilvray has been and now is am actual resident of the city and county of San Francisco, having and maintaining a residence therein for the period of two years last past, and that the cause was not remanded by the United States circuit court on the ground of the joinder of Spreckels, but upon the ground that the