138 Cal. App. 296 | Cal. Ct. App. | 1934
Appellant appeals from (1) a minute order and a subsequent written order, each sustaining, without leave to amend, the general demurrer of the Sun Realty Company, hereinafter called the respondent, to appellant’s complaint, (2) a judgment, pursuant to such orders, in favor of respondent for its costs, and (3) a minute order and a subsequent written order, each denying appellant’s motion to vacate such judgment. The orders sustaining the demurrer are not appealable but are reviewable on appeal from the judgment. (Harmon v. DeTurk, 176 Cal. 758 [169 Pac. 680].) Generally, an order refusing to vacate a judgment is not appealable, but where, as here, the record on appeal from the judgment fails to disclose the grounds of the motion, it is appealable. (Hall v. Imperial Water Co., 200 Cal. 77 [251 Pac. 912].)
Since the general demurrer challenges the sufficiency of the complaint to state any cause of action, it should not have been sustained if the complaint states facts from which any liability results, although not for some or all of the relief sought to be obtained. (California Trust Co. v. Cohn, 214 Cal. 619 [7 Pac. (2d) 297].) The propriety of the ruling on the demurrer must be determined by the consideration of the scope and effect of the allegations of the complaint. (Biggart v. Lewis, 183 Cal. 660 [192 Pac. 437].) The complaint alleges that on October 17, 1927, the respondent, in writing, leased three rooms in an office building for a term of five years to Edwin T. Kennedy, hereinafter called the defendant; that on May 2, 1930, appellant and another, with respondent’s written consent, verbally subleased a portion of such rooms for the remainder of the term; that on November 7, 1930, such other person assigned his interest in the sublease to appellant, defendant and respondent each verbally consenting thereto and respondent presented to appellant a written instrument, which it stated evidenced its consent to the assignment of the sublease and which it asked him to sign; that appellant, believing such statement to be true and relying thereon, signed in the belief that it was a consent to the assignment of the sublease; that, by mutual mistake of the parties, the instrument was so drawn as to now cause respondent to claim it is an assignment of the original lease and an assumption of its obligations; that no consideration has been paid to appellant for assuming such additional obligations; that it was the intention of the parties to sign a consent to the assign
A complaint for the reformation of a contract should allege what-the real agreement was, what the agreement as reduced to writing was, and where the writing fails to embody the real agreement. It is also necessary to aver facts showing how the mistake was made, whose mistake it was and what brought it about, so that mutuality may appear. (Auerbach v. Healy, 174 Cal. 60 [161 Pac. 1157].) While it is necessary to state both the actual and the executed agreements, a general statement, if compre
The sufficiency of the facts stated to warrant the second part of the relief prayed for, to wit, the granting of an injunction, will next be considered. “An injunction cannot be granted: First—To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings. ...” (Civ. Code, sec. 3423; Code Civ. Proc., sec. 526.) The writ will not lie to enjoin a judicial proceeding where the complainant may obtain all the relief to which he is entitled by way of
The judgment is reversed, with instructions to overrule the demurrer.
Knight, Acting P. J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 26, 1934.