We have concluded that the demurrer having been sustained by stipulation, the judgment of dismissal following appellant's failure to amend, must be affirmed without reviewing the sufficiency of the complaint to state a cause of action upon the established principle that a judgment will not be reviewed or disturbed on an appeal which is prosecuted by a party who consented thereto. In Adams v. Southern Pac. Co., at the request of the attorney for the plaintiff, the demurrers of certain defendants were sustained without leave to amend and the plaintiff thereafter appealed from the judgment entered thereon. It is well-settled law in California that a party cannot object to a judgment, order, or ruling consented to by him. This court will not disturb an order or judgment on an appeal taken by a party who consented thereto. Appellant having requested that the demurrer of Cole and Long be sustained without leave to amend, he must be held to have consented to the judgment entered in their favor, which followed as a matter of course. The judgment in favor of these defendants must be sustained. In Christina v. R. Z. Adams Co., Inc., the defendants demurred to the plaintiff's complaint and the minute order showed that the demurrer was sustained without leave to amend by consent and a judgment for the defendants ensued. In affirming the judgment without passing upon the sufficiency of the complaint the court said: In such circumstances, the authorities are numerous, in substance, that the plaintiff waived the right of appeal from the judgment, and thereafter was not privileged to test the question of the sufficiency of the complaint by such an appeal. In Linder v. Russian Health Baths, it appears that one of the defendants cross-complained against a third party whose demurrer to the cross-complaint was sustained without leave to amend with the consent of the cross-complainant. A party may not appeal from a judgment entered with his consent.
Although the foregoing cases deal with appeals taken from judgments following the sustaining of demurrers without leave to amend, we believe that the same principle applies to the instant case wherein the demurrer was sustained with leave to amend by consent and no amendment having been made, the action was dismissed for failure to amend. In either instance, the judgment of dismissal ensues as a matter of course and results from the appellant's consent to an order which he subsequently seeks to have reviewed on appeal.
Appellant contends that only by a judgment of dismissal could the sufficiency of the complaint to state a cause of action be reviewed on appeal. This we concede is the law. However, in the instant matter the judgment of dismissal was not the consequence of any decision by the court on the merits of the demurrer but was the result only of the stipulation of the appellant and respondent that the demurrer be sustained and therefore we conclude that the matter is squarely within the above-cited decisions.
Respondent City of Los Angeles contends that the court should have granted its motion to dismiss the action under Code of Civil Procedure section 583 by reason of plaintiff's failure to bring the cause of trial within five years after the filing of the complaint. Under the circumstances here shown this contention is not sound. In Berri v. Superior Court, a writ of mandate issued to compel the trial court to enter a judgment of dismissal more than five years after the filing of the complaint where the trial court had sustained a demurrer without leave to amend within the five-year period. The court held that an action must be brought within five years to a stage where final disposition is to be made of it and that where a demurrer has been sustained without leave to amend or with leave to amend and the time for amendment has expired within the five-year period, the matter has reached such a stage that a final determination is contemplated and hence section 583 does not require a dismissal in case the judgment of dismissal for failure to amend is not made within the five-year period inasmuch as such judgment follows as a matter of course.
The judgment dismissing the within action under Code of Civil Procedure is affirmed.
Showing posts with label judgment. Show all posts
Showing posts with label judgment. Show all posts
Tuesday, November 18, 2008
Thursday, October 30, 2008
AS - Plaintiffs Share in the Proceeds
The last controverted item is the interest charged against this trustee. In the settlement of a trustee's account in a court of equity he is or is not charged with interest according to the circumstances. There is no statute or arbitrary rule on the subject. When a court of equity charges the trustee with interest, it is when, and only when, the circumstances of the case render it right and just to do so. In this case the various sales of real estate ran through a period from March, 1888, to February, 1902, and the trustee is charged with interest on each item at 6 per cent. per annum from the date of the sale to date of decree, January 14, 1904.
We do not think the circumstances of this case justify the charging of the trustee with interest. The evidence shows that he did not receive any interest on it, and, whilst it shows that he spent it for his own purposes and it is now all gone, yet he did so openly, believing it to be his own and under circumstances which show that the plaintiffs had notice of it. If the plaintiffs thought that they were entitled to a share in the proceeds of these sales, they ought to have said so earlier. But they allowed a period of about 18 years to pass after the final settlement in the probate court, and 10 years or more after defendant began selling this land, before they gave any intimation to him that they claimed any interest under their grandfather's will.
During all that time they seemed to acquiesce in that interpretation of the will on which defendant acted. They now say that these controverted items of credit claimed by the trustee are afterthoughts of his trumped up to meet the exigencies of this case, and very likely that is so, but the plaintiffs' case also bears evidence of being an afterthought. It would have appeared in a more favorable light if it had been brought to the attention of the court 10 years or more ago, or when defendant first began selling the land. The judgment of $140.29 on final settlement in the probate court would bear interest under the statute from the date of its rendition, but the record shows that since that date, and before the filing of this suit, the trustee paid out sums to the beneficiaries more than the amount of that balance; therefore the interest on that sum should not run in this account.
Taking all the other items of the account as stated by the court about which there is no controversy, eliminating the items of interest on both sides, giving the defendant credit for $1,575 in addition to the $900 allowed him by the court for the maintenance of the widow of the testator, and $500 as a fee for his attorneys, leaves as total amount of debits against defendant $10,118 and credits in his favor $4,904.71, leaving as a basis for distribution a balance of $5,313.29, but, as against the respective shares of some of the distributees, defendant is entitled to credit for amounts already paid them, as will be shown in the figures following.
The judgment is reversed, the account is restated to conform to the above views, and a final judgment will be entered here in accordance therewith, the defendant Linus Sanford to pay the costs incurred in the circuit court. All concur.
We do not think the circumstances of this case justify the charging of the trustee with interest. The evidence shows that he did not receive any interest on it, and, whilst it shows that he spent it for his own purposes and it is now all gone, yet he did so openly, believing it to be his own and under circumstances which show that the plaintiffs had notice of it. If the plaintiffs thought that they were entitled to a share in the proceeds of these sales, they ought to have said so earlier. But they allowed a period of about 18 years to pass after the final settlement in the probate court, and 10 years or more after defendant began selling this land, before they gave any intimation to him that they claimed any interest under their grandfather's will.
During all that time they seemed to acquiesce in that interpretation of the will on which defendant acted. They now say that these controverted items of credit claimed by the trustee are afterthoughts of his trumped up to meet the exigencies of this case, and very likely that is so, but the plaintiffs' case also bears evidence of being an afterthought. It would have appeared in a more favorable light if it had been brought to the attention of the court 10 years or more ago, or when defendant first began selling the land. The judgment of $140.29 on final settlement in the probate court would bear interest under the statute from the date of its rendition, but the record shows that since that date, and before the filing of this suit, the trustee paid out sums to the beneficiaries more than the amount of that balance; therefore the interest on that sum should not run in this account.
Taking all the other items of the account as stated by the court about which there is no controversy, eliminating the items of interest on both sides, giving the defendant credit for $1,575 in addition to the $900 allowed him by the court for the maintenance of the widow of the testator, and $500 as a fee for his attorneys, leaves as total amount of debits against defendant $10,118 and credits in his favor $4,904.71, leaving as a basis for distribution a balance of $5,313.29, but, as against the respective shares of some of the distributees, defendant is entitled to credit for amounts already paid them, as will be shown in the figures following.
The judgment is reversed, the account is restated to conform to the above views, and a final judgment will be entered here in accordance therewith, the defendant Linus Sanford to pay the costs incurred in the circuit court. All concur.
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