COLBURN BIOLOGICAL INSTITUTE v. SUPERIOR COURT OF LOS ANGELES COUNTY

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

COLBURN BIOLOGICAL INSTITUTE et al. v. SUPERIOR COURT OF LOS ANGELES COUNTY et al.

Civ. 10153.

Decided: January 16, 1935

Elliott & Aberle and H. F. Poyet, all of Los Angeles, for petitioners. Everett W. Mattoon, Co. Counsel, and D. De Coster, both of Los Angeles, for respondents.

Petitioners Oberdorfer and Farwell, as individuals, and also designating themselves as trustees of the corporation and claiming to act for it, seek a writ of mandate directed to respondent court ordering it to permit them to file their answer to the supplemental and first amended cross-complaint in case No. 337-301 on file in respondent court, entitled “The Colburn Biological Institute, a non-profit California corporation, C. Cecelie Oberdorfer and Dr. Alice M. Farwell, plaintiff, v. Fannie Shaffer, Margaret N. P. Wall, Henry B. Wall, and Nora H. Bates, defendants.” The said supplemental and first amended cross-complaint had been filed at the conclusion of the trial, upon order of the court to conform with the proof, and its allegations were deemed denied without pleading. McKelvy v. Martin, 118 Cal. App. 691, 5 P.(2d) 652.

Assuming, without deciding, that mandate would be proper where, as in this case, the Superior Court had undisputed jurisdiction to act (see Phelps v. Superior Court, 138 Cal. App. 570, 32 P.(2d) 995), we think the demurrer should be sustained to the petition herein and the alternative writ should be discharged and the peremptory writ denied because the answer sought to be filed would serve no purpose.

And it is so ordered.

SCOTT, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIL, J.