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


Civ. 13989.

Decided: March 23, 1943

John A. Jorgenson, of Los Angeles, for appellant. P. E. Durkee, in pro. per., and Paul Angelillo, both of Los Angeles, for respondents.

Plaintiff has appealed from judgments of dismissal of the action as to defendants Monte Cly and P. E. Durkee after their demurrers to the complaint had been sustained without leave to amend.

Plaintiff, a child seven years of age, commenced the action through his guardian ad litem, Evalyn M. Nichols, maternal aunt of plaintiff's mother. It is alleged in the complaint that the plaintiff is the illegitimate son of the defendant Jean Louise Hayward Black and of Jack Reed; that plaintiff's mother is also the mother of another illegitimate child, a girl five years of age, whose father is defendant Monte Cly; that Monte Cly has been appointed guardian of this child; that plaintiff's mother refuses to support plaintiff.

It is further alleged in the complaint that Laura L. Dickinson, who died on September 18, 1940, was the grandmother of plaintiff's mother; that Laura L. Dickinson left real estate in Los Angeles county of the approximate monthly rental value of $65 to $75; that Evalyn M. Nichols had been appointed administratrix of the estate of Laura L. Dickinson; that if Laura L. Dickinson left no will one–half of her estate would descend to plaintiff's mother. On information and belief it is alleged that Laura L. Dickinson executed a will prior to her death leaving $1 to plaintiff's mother, one–half of the residue of her estate to plaintiff and one–half to plaintiff's illegitimate half sister; that immediately after the death of Laura L. Dickinson, plaintiff's mother discovered this will, took possession of it and has either destroyed it or now has possession of it or knows of its whereabouts.

In a separate paragraph it is alleged that defendants Chloe Gordon, Monte Cly, P. E. Durkee, John Doe and Jane Doe claim some right and title to or lien upon the interest acquired by plaintiff's mother “through said descent but in truth and in fact they have none.”

Plaintiff prays that plaintiff's mother “be required to specifically perform her obligation to support, maintain and educate the plaintiff; that she be required to produce said will and that if the same can be found and its existence and validity established that one–half of said property of decedent which may be decreed to have descended to said Jean Louise Hayward Black by reason of intestacy be adjudged to have been received in trust for the benefit of her said children; that said one–half be seized by this court for the purpose of securing the support, maintenance, and education of plaintiff or of plaintiff and such other child; that the same be held as security for the continued future performance of the obligation of said mother to plaintiff or said children; that it be adjudged that the other defendants have no right, title or interest in said premises. * * *”

No brief has been filed in this court by respondents. The only pleadings before us are the complaint, the two demurrers of respondents and the judgments of dismissal as to them. It cannot be determined from the record whether any other defendants appeared in the trial court. The main purpose of the action is to compel support for plaintiff by his mother but in the action plaintiff asked the court to establish the lost or destroyed will of plaintiff's great grandmother and at the same time to declare that certain named defendants have no interest in the property left by the great grandmother. Plaintiff has improperly united several causes of action in the same complaint. Sec. 427, Code Civ.Proc. Since the other parties defendant are not before us, it will be unnecessary to discuss the various legal points which could be presented.

The detailed statement of facts set forth in the complaint demonstrates that no cause of action has been alleged against either of the defendants as to whom the action has been dismissed. Defendant P. E. Durkee and defendant Monte Cly, who is sued in his individual capacity only, are brought into the action by the mere statement that they claim some right to the interest of plaintiff's mother in her grandmother's estate. If this meager statement be treated as an attempt to allege a cause of action to quiet title, it is apparent that the attempt must fail, for plaintiff cannot establish title in himself in a proceeding of this nature.

Judgment affirmed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.