166 P. 322 | Cal. | 1917
Plaintiff appeals from the order or judgment of nonsuit given against him, and also from the order of court refusing to enter the default of the defendant arising from its failure to plead to the amended complaint filed by plaintiff with leave of court. The circumstances, in brief, are that plaintiff at the conclusion of the testimony which he offered sought and obtained leave of court to file an amended complaint to conform to his proofs. This permission was granted and under it the amended complaint was filed. Discussion arose between court and counsel, the attorney for the defendant insisting that without regard to the sufficiency of the amended complaint no evidence had been introduced to sustain its material allegations. Appellant's attorney declared that these statements were "more like an argument for a nonsuit than a motion to strike out."
"By the Court (to Mr. Murphy): Do you move for a nonsuit?
"By Mr. Murphy: Yes, your Honor.
"By the Court: Motion to strike out amended complaint will be denied and motion for nonsuit will be granted."
Section
No change, however, has been worked in the uniform and settled law of this state that the party moving for a nonsuit must state in his motion precisely the grounds upon which he relies. (Sanchez v. Neary,
The judgment of nonsuit is therefore reversed.
The appeal from the court's order refusing to enter defendant's default requires but the briefest notice. It is not an appealable order. It should be added that it is manifest that the trial court having both matters before it at the same time, and intending to grant the motion for a nonsuit, through inadvertence only, made the ruling complained of. In any future proceeding had before that court it will grant permission to the defendant to answer the amended complaint.
Shaw, J., Sloss, J., Melvin, J., Lorigan, J., and Angellotti, C. J., concurred.