Johnson v. Sun Realty Co.

GRAY, J., pro tem. Appellant appeals from (1) a minute order and a subsequent written order, each sustaining, without leave to amend, the general demurrer of the Sun Realty Company, hereinafter called the respondent, to appellant’s complaint, (2) a judgment, pursuant to such orders, in favor of respondent for its costs, and (3) a minute order and a subsequent written order, each denying appellant’s motion to vacate such judgment. The orders sustaining the demurrer are not appealable but are reviewable on appeal from the judgment. (Harmon v. DeTurk, 176 Cal. 758 [169 Pac. 680].) Generally, an order refusing to vacate a judgment is not appealable, but where, as here, the record on appeal from the judgment fails to disclose the grounds of the motion, it is appealable. (Hall v. Imperial Water Co., 200 Cal. 77 [251 Pac. 912].)

[299]The grounds of the motion are that the demurrer should not have been considered because, (1) when heard, it lacked the certificate of good faith, and (2) it had not been regularly transferred, both as required by court rules. Noneompliance with such rules, to which no penalty was attached, did not prevent the court from hearing and disposing of the demurrer. (Wigman v. Superior Court, 74 Cal. App. 132 [239 Pac. 427] ; see, also, Five States Timber Co. v. Dwinnell, 54 Cal. App. 113 [203 Pac. 410].) In absence of any showing to the contrary, it will be presumed that the court disregarded its rules for sufficient cause and to subserve the ends of justice, as it had the power to do. (Connell v. Higgins, 170 Cal. 541 [150 Pac. 769].)

Since the general demurrer challenges the sufficiency of the complaint to state any cause of action, it should not have been sustained if the complaint states facts from which any liability results, although not for some or all of the relief sought to be obtained. (California Trust Co. v. Cohn, 214 Cal. 619 [7 Pac. (2d) 297].) The propriety of the ruling on the demurrer must be determined by the consideration of the scope and effect of the allegations of the complaint. (Biggart v. Lewis, 183 Cal. 660 [192 Pac. 437].) The complaint alleges that on October 17, 1927, the respondent, in writing, leased three rooms in an office building for a term of five years to Edwin T. Kennedy, hereinafter called the defendant; that on May 2, 1930, appellant and another, with respondent’s written consent, verbally subleased a portion of such rooms for the remainder of the term; that on November 7, 1930, such other person assigned his interest in the sublease to appellant, defendant and respondent each verbally consenting thereto and respondent presented to appellant a written instrument, which it stated evidenced its consent to the assignment of the sublease and which it asked him to sign; that appellant, believing such statement to be true and relying thereon, signed in the belief that it was a consent to the assignment of the sublease; that, by mutual mistake of the parties, the instrument was so drawn as to now cause respondent to claim it is an assignment of the original lease and an assumption of its obligations; that no consideration has been paid to appellant for assuming such additional obligations; that it was the intention of the parties to sign a consent to the assign