Daniels v. Daniels
| Decision Date | 14 October 1955 |
| Citation | 136 Cal.App.2d 224,288 P.2d 910 |
| Parties | Gabrielle DANIELS, a minor by Edmund W. Cooke, her Guardian ad litem, Plaintiff and Appellant, v. Orrin Potter DANIELS, Joan Evelyn Daniels, Donald Potter Daniels, Genevieve Winans Daniels, Doe I, Doe II, Doe III, Defendants. Orrin Potter Daniels, Donald Potter Daniels and Genevieve Winans Daniels, Respondents. Civ. 21192. |
| Court | California Court of Appeals |
Moore, Webster, Lindelof & Hughes and Prentiss Moore, Los Angeles, for appellant.
Boyle, Bissell & Atwill and Robert C. Mardian, Pasadena, for respondents.
Appeal by plaintiff from an order dismissing a second amended complaint against defendants Donald and Genevieve Daniels, from an order dismissing the second count thereof against defendant Orrin Daniels, and from an order denying her motion under section 473 of the Code of Civil Procedure to vacate such orders.
On July 28, 1954 plaintiff, a 4-year-old child, through her guardian ad litem, commenced the action to determine her paternity and for damages for an alleged conspiracy to deny her her legitimate rights. The complaint is in two counts and is not verified. The first count is against defendants Orrin Daniels, Donald Daniels, Genevieve Daniels, and Joan Daniels, plaintiff's mother, alleging that Orrin Daniels is plaintiff's father and that Donald and Genevieve Daniels are her grandparents, and praying the court to declare that Orrin and Joan Daniels are her father and mother. The second count is against defendants Orrin Daniels, Donald Daniels, and Genevieve Daniels on the theory that plaintiff is entitled to damages because the three defendants, by common agreement and design, prevented Orrin Daniels from marrying plaintiff's mother until plaintiff was about 18 months of age; prevented Orrin Daniels from acknowledging plaintiff as his child; and deprived plaintiff of the right to be born the legitimate daughter of Orrin Daniels. On September 2, 1954 demurrers to both counts were sustained, and plaintiff was granted 20 days in which to amend.
On September 22, 1954 an amended complaint was filed; it also was unverified. It was practically identical with the original complaint. On October 13, 1954 a demurrer of defendant Orrin Daniels to the first count was overruled and he was granted 20 days within which to answer; his demurrer to the second count was sustained, and plaintiff was granted 10 days in which to amend. A general demurrer of defendants Donald and Genevieve Daniels to the entire amended complaint was sustained, and plaintiff was granted 10 days in which to amend. On Friday, October 15, notices of the rulings were given.
On October 28, 1954 plaintiff filed a second amended complaint, also unverified, which filing was after the time fixed by the court. The second amended complaint was also framed in two counts. The only changes were that in the first count for a declaration of paternity it named Orrin and Joan Daniels as the only defendants, and in the second court it designated plaintiff's mother, defendant Joan Daniels, as one of the alleged conspirators and attempted to expand allegations of slander and bribery. On November 15, 1954 defendant Orrin Daniels moved to dismiss the second count and defendants Donald and Genevieve Daniels moved to dismiss the entire second amended complaint on the ground it was not timely filed.
On November 18, 1954 the motions were heard. No showing by affidavit of otherwise was made on behalf of plaintiff as to why the second amended complaint was not filed in time. On February 24, 1955 the court by minute order granted the motion of defendant Orrin Daniels to dismiss the second count, granted the motion of defendants Donald and Genevieve Daniels to dismiss the entire second amended complaint as to them, and rendered judgment in the minute order in favor of defendants Donald and Genevieve Daniels against plaintiff. The judge in a memorandum of rulings stated that the motions were granted pursuant to section 581(3) of the Code of Civil Procedure on the ground the second amended complaint was not timely filed. Notices of the rulings were given plaintiff on February 28, 1955.
On March 7, 1955 plaintiff filed a notice of motion for relief from the orders of February 24, 1955 under section 473 of the Code of Civil Procedure on the ground of mistake, inadvertence, surprise, and excusable neglect of plaintiff and her attorneys. An affidavit of one of plaintiff's attorneys was attached setting forth the reasons and causes for the delay in filing the second amended complaint. No affidavit of merits was filed in support of the motion. An affidavit in opposition to the motion was filed. On March 15, 1955 the motion was denied.
With respect to defendant Orrin Daniels, plaintiff appeals from the minute order dismissing the second count of the second amended complaint and from the order denying relief under section 473 of the Code of Civil Procedure. As to defendants Donald and Genevieve Daniels, plaintiff appeals from the minute order dismissing the entire second amended complaint and from the order denying relief under section 473.
The minute order dismissing the second count of the second amended complaint as to Orrin Daniels is not an appealable order and the appeal therefrom must be dismissed. That appeal is premature. The court did not dismiss the first count as to Orrin, and a final judgment has not been entered as to him. The action is still pending as to him. A minute order dismissing one count from a complaint containing multiple counts, leaving a count or counts undetermined between the same parties, is not a final judgment and an appeal therefrom is abortive. Greenfield v. Mather, 14 Cal.2d 228, 93 P.2d 100; Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174.
The minute order dismissing the entire second amended...
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