Johns v. Mongan

SHOEMAKER, J. This is an appeal by petitioner W. Harry Johns, in propria persona, from a judgment of dismissal of petition for writ of mandate entered upon the sustaining of the demurrer without leave to amend interposed by the respondent Martin Mongan.

The record discloses that on September 26, 1958, appellant brought an action in the Superior Court of San Francisco to quiet title and to set aside a trustee’s deed. The real parties in interest were served on or about February 3, 1959. On February 9, 1959, appellant filed an amended complaint which was shortly thereafter served upon the real parties in interest, who in due time filed a demurrer to the said amended complaint. The demurrer to the amended complaint came [96]on for hearing on April 22, 1959, at which time it was discovered that appellant had on March 24, 1959 had the default of the real parties in interest taken for failing to appear and answer with respect to the original complaint. The court thereupon continued the hearing on the demurrer to May 6, 1959, so that the real parties in interest could move to set aside the default. The appellant was notified of the continuance prior to April 24, 1959. However, on that date he appeared in another department of the superior court, Judge Foley presiding, and moved for entry of a default judgment without informing the judge as to the proceedings before the law and motion department, and judgment was awarded in his favor, which the clerk duly noted in the minutes of the court. On May 6, 1959, in the law and motion department before Judge Weinberger, a motion to vacate the default taken on March 24, 1959, and the demurrer to the amended complaint was heard, and on May 11, 1959, the court made its order setting aside the default and sustaining the demurrer without leave to amend.

Thereafter, appellant appealed from Judge Weinberger’s order (No. 18963 in this court) and said appeal was dismissed since it was from a nonapp eatable preliminary minute order. Thereafter, appellant’s motion to require the real parties in interest to answer interrogatories concerning the same lower court subject action was quashed. Again he appealed to this court from this order (No. 19324), and this appeal was likewise dismissed because it was from a nonappealable order. Then appellant filed with this court a petition for writ of mandate and/or prohibition (No. 18884) in which he sought an order directing Judge Foley to sign his alleged default judgment, to require Judge St. Clair to sign and approve the clerk’s certificate, and to require Judge Weinberger to vacate his minute order setting aside the default and to strike the demurrer. This court denied the petition on July 28, 1959, and the Supreme Court denied a hearing on August 26, 1959. Thereafter, appellant petitioned this court for a writ of mandate (No. 19587) to compel the superior court to enter a default of the real parties in interest for their refusal to answer certain interrogatories, which was denied on October 10, 1960.