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

MAHAR et al. v. GOODSPEED et al.

Civ. 10920

Decided: January 18, 1939

Hansen & Sweeney, M.H. Holman, and H.A.I. Wolch, all of Los Angeles, for appellants. Goodspeed, Pendell & McGuire, Charles L. Nichols, Gerald F.H. Delamer, Oscar Zangwell Wiseman, and Mott, Vallee & Grant, all of Los Angeles, for respondents.

Plaintiffs appeal from a judgment in favor of defendants Evans and Davenport after their demurrer was sustained with leave to amend.

The complaint is the same as the one upon which the same plaintiffs went to trial against the remaining defendants in the case just decided, Cal.App., 86 P.2d 382. The appellants herein stipulate that we may consider the record on the other appeal as though the two appeals were consolidated. Under these circumstances we can find no purpose in an academic discussion of the points raised on the appeal. The facts pleaded in an effort to toll the running of the statute of limitations and excuse laches were found not to have been well pleaded and not capable of proof in the trial of the main action. The plaintiffs were accorded the privilege of amending their complaint to state a case but declined to do so. The complaint rests upon charges of fraud committed more than ten years before the complaint was filed, and indicated knowledge by plaintiffs of the acts complained of for seven years. The allegation of facts to excuse such delay are to be examined most critically, and hence the special grounds of demurrer are sufficient to support the judgment.

The judgment is affirmed.

NOURSE, Presiding Justice.


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