Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
HARPER v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.
The petitioner filed a complaint in the Superior Court asking partition of a single piece of real property with a dwelling house thereon and setting forth that she was the owner of an undivided one-eighth thereof as a tenant in common in fee simple, and that the defendants named in the complaint owned together the other seven-eighths in common with the plaintiff. The answer of the defendants therein admitted the material allegations of the complaint and pleaded as an affirmative defense that a present sale of the real property would be unwise because of the present depressed condition of real property values. The plaintiff thereupon moved for judgment on the pleadings and, her motion having been denied, she seeks the mandate of this court to require the respondent court to grant her motion.
In support of her petition the petitioner cites Rich v. Smith, 26 Cal. App. 775, 783, 148 P. 545, to the effect that a defendant in partition is not entitled to a postponement of the sale merely to obtain a possible increase in the market price of the property, and argues that, for this reason, the answer of these defendants sets up no triable issue. The Rich Case states the accepted rule and, on the trial, we may assume that that rule will be followed. But we cannot for that reason say that the trial court should be compelled to grant the motion for judgment on the pleadings. The petition is framed upon the theory that it is the mandatory duty of the Superior Court to grant a motion for judgment on the pleadings in every case where the answer fails to set up a good defense. There is nothing in our statutes declaring this to be so, and no authorities are cited declaring such to be the rule. No facts are pleaded showing an abuse of discretion. To the contrary, it appears that the cause was set for trial at a date within ten days from the denial of the motion.
On the authority of Allyne v. Superior Court, 200 Cal. 661, 666, 254 P. 564, the petition herein is insufficient to warrant the issuance of the writ.
The petition is denied.
NOURSE, Presiding Justice.
We concur: STURTEVANT, J.; SPENCE, J.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Civ. 9507.
Decided: July 19, 1934
Court: District Court of Appeal, First District, Division 2, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)