Sidney v. Rotblatt

WHITE, P. J. Plaintiffs, Mr. and Mrs. Sidney, appeal from the judgment and from the order denying their motion for a new trial, but by their opening brief the latter appeal is abandoned. The judgment from which they appeal is in favor of defendants for their costs.'

Appellants’ complaint to enjoin trustees’ sale was filed October 6, 1953. By their amended and supplemental complaint filed October 20, 1953, they allege that the trustees’ sale sought to be enjoined has been completed and they pray that “said trustees’ sale be vacated and the trustees’ deed cancelled; that all proceedings thereunder be restrained; that an accounting be required. ...”

On March 2, 1955, appellants filed notice of motion for leave to amend and supplement complaint, and their pro[455]posed second amended and supplemental complaint. And on March 3, 1955, they filed notice of motion for order granting jury trial. Both came on for hearing as noticed on March 8, 1955, which was 10 days before the trial date theretofore set and noticed. Both motions were denied without prejudice.

Without notice of intention to do so, at the beginning of the trial, appellants again asked permission to file said second amended and supplemental complaint and again asked for a jury trial. Both motions were denied. Appellants then moved to consolidate for trial an action filed by them and “served today” upon respondents. That motion was denied.

The trial then proceeded from March 18 to 24, and at its conclusion appellants again moved for leave to amend their complaint as per the proposed second amended and supplemental complaint on file, which was submitted; and they then moved for permission to amend the prayer of their complaint, which was granted. March 25, the trial court granted appellants’ motion for leave to file said second amended and supplemental complaint.

The second amended and supplemental complaint so filed incorporates by reference the amended and supplemental complaint as the first cause of action, alleges eight additional causes of action, prays for restitution or damages in the alternative and several other items of damage.

Appellants contend on the instant appeal that the trial court erred in denying them a jury trial. It is admitted that, until the second amended and supplemental complaint was filed no cause of action at law had been pleaded and a jury trial would have been improper, hut appellants urge that the effect of the denial of their motions 10 days before the trial and at the beginning thereof “was to deny plaintiffs the right of trial by jury to which they were entitled.” Appellants cite and rely upon decisions to the effect that “A denial of right to jury trial to a party entitled thereto is a ‘miscarriage of justice’ requiring reversal.”