Marr v. Superior Court

STURTEVANT, J. The petitioner applied to this court for a writ of mandate directing the trial court to allow the petitioner to file an amended answer in an action pending before said trial court. We ordered an alternative writ issued and the said writ was served on the respondents. The hearing of said application was on the calendar December 12, 1938. No appearance was made by respondents and the application was submitted.

On the 25th day of July, 1936, the Bay Cities Loan Company, a corporation, filed in the Justice’s Court in the City of Berkeley, County of Alameda, State of California, an action, number 27420, against this petitioner and his wife. Later it filed an amended complaint. The defendants filed an answer to the amended complaint, a trial was had on the issues made by said pleadings, and a judgment was rendered in favor of Bay Cities Loan Company. Prom that judgment Robert L. Harr, and his wife appealed on questions both of law and of fact. Later the action came on for trial de novo before the superior court. It was partly tried but was continued and the trial is now incomplete.

After said action was commenced against Robert L. Marr and his wife, Robert filed a petition in bankruptcy. In his petition he listed the obligation on which Bay Cities Loan Company had sued him and his wife. On the 25th day of April, 1936, he was adjudged a bankrupt. On the 26th day of October, 1936, he was granted a discharge in bankruptcy.

The amended complaint in said action number 27420 pleaded the plaintiff’s suit in one count. It contains seven paragraphs. The first four paragraphs contain the ordinary allegations of a complaint based on a promissory note. The remaining paragraphs contain allegations pleading a cause of action in fraud and deceit and allege that at the time Robert [277]L. Marr and his wife applied for the loan mentioned above they made certain false representations regarding their credit, that Bay Cities Loan Company believed said representations, and acted thereon.

Bay Cities Loan Company also inserted in its complaint: “VI. On or before the 25th day of April, 1936, defendant Robert L. Marr was adjudged a bankrupt in the District Court of the United States in and for the Northern District of California, Southern Division.” The pleading concludes with a prayer for $240.09, the principal, interest from February 27, 1936, counsel fees in the sum of $100, costs, and for such other and further relief as to the court may appear just and proper. In their answer Robert L. Marr and his wife admitted the material allegations regarding the execution and delivery of the promissory note and also paragraph VI, supra. They denied specifically all of the allegations charging fraud and deceit. The answer contained other denials not material to this application.