CALIFORNIA CANNING MACHINERY CO v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 2, California.

CALIFORNIA CANNING MACHINERY CO. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al.a1

Civ. 10012.

Decided: November 21, 1934

Charles L. Nichols, of Los Angeles, for petitioner. Everett W. Mattoon, Co. Counsel, and Fred M. Cross, both of Los Angeles, for respondents.

A writ of mandamus is prayed to require the vacation of an order of the Superior Court removing an action from the trial calendar and requiring that the action be tried and determined.

Petitioner herein and plaintiff in the referred to action, a corporation, according to the allegations of the complaint had heretofore entered into a written agreement with one of the defendants in the action. By its action the corporation seeks to have the meaning of the agreement declared and that if the alleged contract does not mean what plaintiff alleges it to mean that the agreement be reformed.

The defendants in their answer set up the plea of abatement and allege that an action in a different department of the same court had theretofore been brought, prosecuted to judgment, and that appeal was then pending upon the same issues between the same parties. This with two differences, however. The principals, or parties to the action, were reversed as to their status of plaintiffs and defendants and the plaintiff in the first suit brought was a corporation whereas this corporation and an individual were defendants in the last suit brought.

A demurrer to the abatement plea was sustained and defendant did not amend within the time allowed or offer to amend at all, but at the time the cause was called for trial oral objection to proceeding was made by defendants on the ground that the issues between the parties had been adjudicated and that the case should be put off the calendar until appeal in the first case should have been decided. The court ordered the cause off calendar.

From the showing made to us there was no pleading whatever before the trial court showing that the two cases were based upon the same issues or that the cause was between the same parties and neither would seem to be the exact fact though we do not so decide. While the pleadings of actions under our Code are simple and nontechnical, still actions must generally be considered and tried upon and within the terms of written pleadings. The case was before the court for trial and there was no legal reason before the court for its being refused trial. The order was not a simple continuance until an imminent decision should be handed down which would guide the court, but was a complete elimination of the case from the trial calendar.

The cause is submitted to us for disposition upon the petition and a demurrer thereto.

The demurrer is overruled, and the peremptory writ is granted.

STEPHENS, Presiding Justice.

We concur: CRAIL, J.; SCOTT, Justice pro tem.