Johnson v. Holt

BARNARD, P. J. This is an appeal from an order permiting the plaintiff to file an amended complaint.

[339]The plaintiff appeared in propria persona throughout the proceedings in the trial court. In the original complaint, filed September 6, 1955, damages were sought based on allegations that the defendants, with fraudulent intent, had made misrepresentations to the mother of plaintiff, together with false accusations against the plaintiff, for the purpose of inducing her to break an existing agreement between her and the plaintiff, and had caused a prior suit to be brought for the purpose of breaking that agreement. A demurrer was filed which came on for hearing on November 3, at which time the court granted a continuance to December 1,1955. On December 1, the plaintiff failed to appear and the court made an order sustaining the demurrer without leave to amend. On December 2, the plaintiff appeared and learned that the demurrer had been sustained, and the judge told the clerk to phone the defendants’ attorney and ask him to appear so that plaintiff could make a motion to vacate the order sustaining the demurrer. Apparently, such a motion was made as the defendants appeared on December 6 and opposed the granting of such a motion. The court ordered the defendants to submit a brief as to why such relief should not be granted. The matter was submitted on December 16 on points and authorities submitted by both parties. The plaintiff’s brief relied on section 473 of the Code of Civil Procedure, and cited many cases on the granting of such relief.

On February 21, 1956, the court filed a memorandum decision “on the motion of plaintiff to vacate and set aside” the order sustaining the general demurrer without leave to amend. After stating that the showing of excusable neglect on the part of the plaintiff was sufficient to sustain his position (based on confusion with respect to the date of hearing at the time of setting the date, and on a change of date on the face of the minute entry fixing the date), the court went on to say that it was difficult to ascertain the theory on which the complaint was based; that “in its present condition” it cannot be told whether the cause of action is based on fraud, on damages for tort, for libel, or for all three; that the plaintiff had made no attempt to show how the complaint could be amended; that any amendment setting up a cause for libel, or for damages not founded on fraud, would be barred by the one-year statute; and that for these reasons the motion to set aside the default would be denied. An order was entered on February 24 denying “the motion to set aside the order sustaining the demurrer without leave to amend,” in which it was recited that the mat