279 P. 837 | Cal. Ct. App. | 1929
THE COURT.
An original application for a writ of prohibition to the Superior Court of the City and County of San Francisco, directing said court to desist and refrain *39 from further proceedings in an action pending therein, which was commenced on November 10, 1925, by Katherine Horton against George and Emma Lindsey, and is numbered 163152 according to the register of actions in said court. The suit was for the rescission, on the ground of fraud, of a contract for the purchase by plaintiff of the furnishings of an apartment house, the recovery of sums paid by her thereon and for damages.
A summons was issued, but, so far as appears, was not served upon the defendants. Thereafter, on September 13, 1927, the plaintiff was adjudged to be an incompetent person, and P.G. Sanborn was duly appointed and qualified as the guardian of her estate. On June 23, 1928, respondent, upon the application of the guardian, made an order for his substitution as plaintiff in the action, and on June 26, 1928, an amended complaint was filed therein, stating the same facts as appeared in the original complaint, with the additional fact of the appointment of Sanborn as guardian. The amended complaint, however, was entitled "P.G. Sanborn, guardian, on behalf of Katherine Horton, an incompetent person, plaintiff," the name of the incompetent being omitted in the caption, although the pleading alleged that the same was filed on her behalf, and one W.E. Bivens, alleged to have been an agent of the principal and certain fictitious defendants in the transaction, was also joined as a defendant.
Thereafter, on July 24, 1928, there was filed a second amended complaint with the same caption and containing substantially the same allegations of fraud as those appearing in the original and first amended complaint. On July 27, 1928, defendant Bivens filed his answer "to the amended complaint," denying the material allegations therein, and on September 6, 1928, defendant George and Emma Lindsey filed their joint general demurrer to the "second amended complaint," alleging, also, that the pleading was uncertain in the particulars specified in the demurrer. An answer, putting in issue the material allegations of the amended pleading, was filed by them at the same time, and the demurrer having been overruled the parties on December 18, 1928, proceeded to trial.
It appears that evidence in support of the allegations of the complaint as amended was introduced over objection *40 by defendants, and the plaintiff having rested, defendants moved for a nonsuit upon the ground of variance between the allegations of the complaint and the evidence offered in that no cause of action in the guardian as such was shown. The guardian then moved for leave to amend to conform to the proof by substituting the ward as plaintiff, by her guardian, and that the action be continued in her name. The defendants, who opposed this motion, thereupon moved to dismiss the action upon the ground that, more than three years having elapsed since the filing of the original complaint and the summons not having been served, the court, under the provisions of section 581a of the Code of Civil Procedure, was, saving its power to enter an order of dismissal, without jurisdiction to proceed. The motions for a nonsuit and the dismissal of the action were denied, and an order entered permitting the complaint to be amended as requested.
Petitioners contend that the first amendment, whereby the guardian was named as plaintiff in the action, although alleging that the amended pleading was filed on behalf of the ward, was in effect a new action; and that the summons issued on November, 1925 — which was the only summons issued — not having been served, and more than three years having elapsed, the court was without jurisdiction to allow the amendment sought at the trial or to do otherwise than dismiss.
[1, 2] That the ward rather than the guardian should have been named as plaintiff is well settled (Fox v. Minor,
[3] As stated, the pleadings throughout show a cause of action in the original plaintiff; and while it may be assumed that a demurrer to the amended complaint should properly have been sustained on the ground that no cause of action was shown to be vested in the guardian, neither the erroneous order for his substitution as plaintiff nor the amendment made in conformity therewith deprived the court of jurisdiction *41
(Dixon v. Cardozo, supra; Westphal v. Arnoux,
[4] Section
In Cox v. San Joaquin Light Power Co.,
The above is peculiarly applicable to the case at bar, and it is our conclusion that the amendment had not the effect claimed but that respondent court, notwithstanding the amendment, retained jurisdiction of the cause, and due to their voluntary appearance acquired jurisdiction of the parties defendant.
[6] Should the orders complained of be erroneous they may be reviewed in a proper proceeding; but the function of a writ of prohibition being to restrain subordinate tribunals from exceeding their jurisdiction (Code Civ. Proc., sec. 1102), it cannot be used to take the place of an appeal (Coker v.Superior Court,
We find no merit in the contentions of petitioners and the writ is accordingly denied.