Allen v. California Mutual Building & Loan Ass'n

STURTEVANT, J. The defendant, California Building and Loan Association, was organized in 1889. It continued to do business down to the 23d day of January, 1933, when it went into liquidation and the defendant Justus Craemer, the then building and loan commissioner, took control. Prior to the date of liquidation each of the plaintiffs had become an investor. In 1929 the State Capital Company was organized. It was organized as an agency of, and for the purpose of assisting the California Mutual Building and Loan Association in the transaction of its business. During the period 1929 to 1931 the agents of the California Mutual Building and Loan Association induced the plaintiffs to exchange their investments in it for shares of stock in State Capital Company. In doing so the plaintiffs claim they were defrauded. On February 26, 1936, they filed a complaint pleading such facts and sought to recover a judgment in damages. They did not allege in their complaint that at any time they presented their claims to the building and loan commissioner. On November 17, 1938, the plaintiffs filed a second amended complaint. It likewise contained no allegation regarding the presentation of claims. T. J. Edwards, claiming to be the owner of a passbook and to have superior rights to the assets of California Mutual Building and Loan Association, filed a complaint in intervention. The second amended complaint and the complaint in intervention were answered and the cause was set down for trial on the 5th day of June, 1939. The plaintiffs called George S. Walker, the then building and loan commissioner, as a witness. Before he had given any testimony the defendants interposed an objection to the taking of any evidence on the ground that the plaintiffs ’ second amended complaint did not state a cause of action. Later that objection was sustained. Still later, on motion of the defendants, the trial court ordered a judgment in their favor on the pleadings in the case. The plaintiffs duly moved for a new trial. That motion was granted. From that order the defendants have appealed.

In their opening brief the defendants contended that the presentation of claims as provided in section 13.16, Act 986, [377]volume I, Deering’s General Laws 1933, as amended in 1935, was a condition precedent to the maintenance by the plaintiffs of this action. In the plaintiffs’ brief they controverted that contention. In the reply brief the defendants for the first time presented the point that a motion for a new trial was not proper under the facts hereinabove set forth. Continuing, they claimed that therefore the order granting a new trial should be reversed. (Hotel Park Cent. v. Security-First Nat. Bk., 15 Cal. App. (2d) 293 [59 Pac. (2d) 606] ; Abbey Land etc. Co. v. San Mateo County, 167 Cal. 434 [139 Pac. 1068, Ann. Cas. 1915C, 804, 52 L. R A. (N. S.) 408].) The plaintiffs stress the fact that the trial court sustained an objection to the introduction of evidence. Thereupon they assert they had a right to make a motion for a new trial for the purpose of having reviewed an “error in law occurring at the trial and excepted to by the party making the application”. (Code Civ. Proc., sec. 657, subd. 7.) They then claim that because the court thereafter granted a motion for judgment on the pleadings they were not deprived of their right to make a motion for a new trial. They cite and rely on Moore v. Bates, 46 Cal. 29: Green v. Duvergey, 146 Cal. 379, 385 [80 Pac. 234] ; Stow v. Superior Court, 178 Cal. 140, 142-145 [172 Pac. 598]; People v. Garcia, 98 Cal. App. 702, 705 [277 Pac. 747] ; Johnson v. Superior Court, 121 Cal. App. 288, 292 [8 Pac. (2d) 1047]. We think the defendants a.re in error and that the contention of the plaintiffs must be sustained. The difference between the two lines of cases is not broad, but nevertheless it is clear. It is settled law and has been for many years, that an order granting a motion for a nonsuit, whether the motion is based on the opening statement or after the close of the evidence, may be reviewed on a motion for a new trial. (Carton Corp. v. Superior Court, 76 Cal. App. 434, 436 [244 Pac. 932], and cases there cited.) It is also settled law that an order ruling on a motion may not be reviewed on a motion for a new trial. (20 Cal. Jur. 19, New Trial, sec. 7.) In accord with that rule a motion for judgment on the pleadings, not accompanied or associated with other rulings made at the time of the trial, falls within the rule last stated. (Alley Land etc. Co. v. San Mateo, supra.) But when on an examination of the entire record it appears the trial court sustained an objection of the defendants to the introduction of any evidence by the