Converse v. Joslin

• Decision Date: 28 December 1959
• Citation: 176 Cal.App.2d 638,1 Cal.Rptr. 777
• Parties: Helen M. CONVERSE, Plaintiff and Appellant, v. C. E. JOSLIN et al., Defendants and Respondents. Civ. 23133.
• Court: California Court of Appeals

Page 777

1 Cal.Rptr. 777

176 Cal.App.2d 638

Helen M. CONVERSE, Plaintiff and Appellant, v. C. E. JOSLIN et al., Defendants and Respondents.

Civ. 23133.

District Court of Appeal, Second District, Division 1, California.

Dec. 28, 1959.

John F. Poole and Elon G. Galusha, Los Angeles, for appellant.

Chas. T. Rippy, Torrance, and Harold W. Svenson, Van Nuys, for respondents.

BISHOP, Justice pro tem.

We are confronted in this one case, with six--in reality thirteen--appeals, each one taken by the plaintiff. The first notice of appeal was filed October 23, 1956; the latest, December 4, 1957. (Appellant's closing brief was filed July 29, 1959.) We find no one of the appeals to have merit, nor to present problems that justify, in themselves, the space in law libraries that this opinion will take. But, that we may give other than lip service to the provision of Article VI, section 24, of our Constitution, directing that we always state in writing the grounds of our decisions, we shall deal with each appeal at greater length than we otherwise would.

In order the more readily to make understandable the problems to be considered, we pause to give the underlying plot of plaintiff's case. There are three principal characters: Melville E. Joslin, the president of the Joslin Lumber Company, and owner of one share in that corporation; his mother-in-law, Alameda A. Converse, owner of 518 shares, and first vice-president; and Ploma Joslin, daughter of Alameda and wife of Melville, who was committed to Camarillo State Hospital in 1940. Apparently, we need not know, no shares were issued to her, but, plaintiff claims, she nonetheless owned a large part of the assets of the corporation.

In 1938 Melville 'attempted' to dissolve the corporation, but never turned any of its assets over to Alameda or Ploma. Instead, they were used, and the profits invested and reinvested in a number of allied enterprises, until the total, now sought to be declared to be held in trust for plaintiff and Ploma, amounts to $1,824,507, according to what plaintiff asserts is her conservative estimate.

This suit, commenced March 30, 1953, progressed through various maneuvers until three judgments of dismissal were entered after as many demurrers were sustained without leave to amend. The appeals before us are from these three judgments and from three orders, one of which covers eight separate motions.

Appeal from Order of August 24, 1956.

This order must be sustained on two grounds: (1) the motion it denied was made too late; (2) the trial court was quite justified in not accepting as a fact the ground relied upon in its support.

On March 12, 1954, two requests for entries of dismissal were filed by John J. McMahon, attorney for plaintiff, and the notation appears on each: 'Dismissal entered this 15 day of March, 1954.' The first of these requests asked that the action be dismissed with prejudice as to defendants Helen McLemore (also known as Helen Joslin), Lucile Bransford (sued herein as Lucile Brankford) and Ruth Joslin Durbin. The second requested the clerk to enter a dismissal 'as to Item No. 10, page 14, lines 27 to 32, inclusive, of the complaint on file herein covering 'A Duplex residence located at 1500-120th Street, Torrance, California' etc.,'.

A motion to set aside an order made in open court to dismiss the action as to a defendant is authorized by the fourth paragraph of section 473, Code of Civil Procedure (Harth v. Ten Eyck, 1941, 16 Cal.2d 829, 833, 108 P.2d 675, 677) and so is a motion to set aside a dismissal filed with the clerk. Robinson v. Hiles, 1953, 119 Cal.App.2d 666, 672-673, 260 P.2d 194, 197. Relief under section 473, however, by its own terms may not be sought after the expiration of six months, and plaintiff did not file notice of her motion for relief from these dismissals until June 14, 1956, more than two years after the dismissals were entered.

The ground upon which the plaintiff sought to have the dismissals undone was that they had been entered by her former attorney without her knowledge or consent. The trial court was warranted by the circumstances in not believing her statement that the dismissal was without her knowledge or consent, for her first amended complaint, filed about two years after the dismissals and a month before her motion to set them aside, contained terms in harmony with the knowledge that the three defendants were no longer parties; that she had no complaint against them; and that the property described in the second dismissal was not involved in the action. The names of Lucile Brankford and Ruth Joslin Durbin appeared among the host of other defendants in the title of the original complaint, and in its text they were said, 'according to the record in the Probate Estate of Melville E. Joslin,' to be two of his heirs. In the first amended complaint, which the plaintiff filed in propria persona, the name of neither defendant appears. The trial court could well believe that the disappearance of these two defendants from the case was not inadvertent but with her knowledge and consent.

The third of the dismissed defendants was Helen McLemore, alias Helen Joslin. She was mentioned several times in the original complaint where it was alleged: 'That according to the record in the Probate Estate of Melville E. Joslin No. 332947 his heirs at law were purported wife Helen Joslin * * *.' In the list of sixteen items declared to be the subject matter of the suit, we find: 'Item No. 10 A Duplex residence located at 1500-120th Street, Torrance, California claimed to be owned by Helen McLemore now collecting the rent on the same under the name of Helen Joslin.' Some other properties are listed, 'claimed to be owned by' or 'operated by' 'Melville E. Joslin and/or Helen McLemore.' But in the first amended complaint, over the signature of 'Helen Converse, Plaintiff in Pro Per,' in only two instances is Helen McLemore (Joslin) named (1) Among a list of the concealed assets of the Joslin Lumber Company's interest is this one 'd) Joslin Lumber Co. 1782 West Carson, Torrance, California, M. E. Joslin, Helen Joslin, filed August 13, 1944;' (2) In the concluding paragraph of the pleading we read: 'That the following persons are sued herein as fictitious persons and corporations, to-wit: John Doe McLemore, husband of Helen McLemore * * *.' Neither among the 'concealed assets' nor elsewhere is there any mention made of the duplex building at 1500-120th Street, as to which a 'dismissal' had been entered, allegedly without the knowledge or consent of the plaintiff. Again, the trial court may very well have been skeptical of plaintiff's contention that she neither knew nor consented to the dismissals made long before she filed her amended complaint, which was in harmony with the dismissals.

The order denying her belated motion to set them aside must be affirmed.

Appeals from Judgments of Dismissals.

Three demurrers to the second amended complaint were filed: One by defendants Joslin Lumber Co., a California corporation and C. E. Joslin, sued individually and as one of the partners of the Southwest Lumber Co.; another by defendant Eva M. Alexander, doing business under the fictitious firm name and style of Joslin-Alexander Co.; and the third by defendant George Cole, individually and as one of the surviving stockholders and trustees for Joslin Lumber Company, a corporation, and defendant Elvin Phillips, individually. Each of these demurrers raises the question of plaintiff's legal capacity to sue on behalf of Ploma C. Joslin and that of the sufficiency of the second amended complaint to state a cause of action. Each was sustained without leave to amend; judgments of dismissal followed, and were appealed from.

Plaintiff opens her pleading with the words: 'Comes Now Helen M. Converse, Plaintiff in her own right and in behalf of Ploma C. Joslin, her cousin, now confined in the Camarillo State Hospital, Camarillo, California, as an alleged incompetent, of whose body she is the duly appointed Guardian * * *' Later it is alleged that Ploma was committed to Camarillo State Hospital in April of 1940, and on November 18, 1946, the plaintiff was appointed as guardian of her estate and person. However, in March of 1953, by court order her powers were suspended 'and an attempt was made to remove the plaintiff as the Guardian of this Estate and person.' She adds that she is informed and believes 'that she is still the legal guardian--because an appeal was taken from all of the orders of the court removing moving her as guardian--.' That which she does not allege, in her third attempt to plead her case, was that the appeal was dismissed. This, however, was alleged in her verified first amended complaint, and she can not avoid the effect of that fact by her failure to speak of it in her subsequent complaint. 'Where a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation. [Citing cases.]' Lamoreux v. San Diego & Arizona Eastern Railway Co., 1957, 48 Cal.2d 617, 623, 311 P.2d 1, 4. See, also Campbell v. Campbell, 1958, 157 Cal.App.2d 548, 554, 321 P.2d 133, 136-137, and Tudor v. City of Rialto, 1958, 164 Cal.App.2d 807, 812, 331 P.2d 122, 126, citing cases.

Plainly plaintiff appears to have no legal capacity to sue on behalf of Ploma. She (plaintiff) is no longer guardian of her estate. If guardian of her 'body,' by which is doubtless meant 'person,' that relationship results in no right to sue on her behalf. Is she her cousin? That would add nothing to her legal stature. She appears to be Ploma's sister-in-law, but that creates no capacity to prosecute an action. As to any cause of action attempted to be stated as to Ploma, the demurrers were properly sustained, and that they were sustained without leave to amend does not appear to be an abuse of discretion.

In testing the sufficiency of...