Muller v. Muller

AGEE, J. Plaintiff appeals from a judgment entered upon the sustaining of a general demurrer by defendants to his complaint, without leave to amend. Plaintiff stated in writing to the trial court that if the demurrer should be sustained it should be sustained without leave to amend. He makes the same statement to us, saying that he would not amend his complaint any further even if given leave to do so. This eliminates any question as to an abuse of discretion by the trial court in not affording to appellant an opportunity to amend his complaint. (See Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 719 [128 P.2d 522, 141 A.L.R. 1358].) Furthermore, it does not appear to us that any such amendment could result in stating a cause of action. (Routh v. Quinn, 20 Cal.2d 488, 493 [127 P.2d 1, 149 A.L.R. 215].) While appellant appears in propria persona, he has had considerable experience as such, particularly with respect to the subject matter of this action.1

The complaint does not even purport to state a cause of action or seek any relief against respondent Charles Reagh, who is the attorney for Mrs. Muller.2 Reference hereafter to “respondent” is intended to designate the latter only.

[706]Appellant and respondent intermarried on January 27, 1944, and respondent obtained an interlocutory decree of divorce from Mm as of September 22, 1953. The final decree was entered on December 7, 1954.

On April 23, 1952, appellant deeded all of lot 5 in a certain subdivision to respondent. The deed was not acknowledged. On May 18, 1954, respondent obtained a judgment declaring the validity of the deed and quieting her title to this lot as against appellant. The judgment was affirmed on appeal. (Muller v. Muller, 141 Cal.App.2d 722 [297 P.2d 789], decided May 23, 1956.)

On July 26, 1955, respondent filed an action (No. 68865) against appellant and one Datlow to quiet title in her as to lots 6 and 7 in the same subdivision. (Her counsel explains that this was done to protect her rights as to lots 6 and 7 in the event the quiet title judgment as to lot 5 was not affirmed, it being her position that lot 5 was to be hers and lots 6 and 7 were to be appellant's as a part of an agreement between them.)

On October 27, 1955, one Hallenbeck intervened in action 68865 and filed a cross-complaint against respondent, seeking to quiet title in him not only as to lots 6 and 7 but also as to the northeasterly portion of lot 5.