Holland v. Morgan & Peacock Properties Co.
| Decision Date | 26 February 1959 |
| Citation | 168 Cal.App.2d 212,335 P.2d 773 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kent B. HOLLAND and Alex B. McLean, Plaintiffs and Respondents, v. MORGAN & PEACOCK PROPERTIES COMPANY, a copartnership, Amanda Hanford Morgan and Jules J. Agostini, Jr., Defendants and Appellants. Civ. 18035. |
Wm. H. Neblett, Los Angeles, R. Arthur Bellman, Berkeley, for appellants.
Bernard Allard, Fernhoff & Wolfe, Oakland; Leon G. Seyranian, Richard G. Logan, Oakland, of counsel, for respondents.
Judgment in this action was affirmed this day in No. 18049. Cal.App., 335 P.2d 769. After entry of judgment and denial of motions for judgment notwithstanding the verdict and for new trial, appellants moved (Code Civ.Proc., § 473) to set aside the judgment as void. In addition to their appeal from the judgment (No. 18049), they appeal separately from the order denying this motion.
Upon the appeal from the judgment we have held that the agreement of the parties was not required to be in writing and was not illegal. This dispose of appellants' claim that the judgment is void because based upon an invalid or illegal contract.
However, appellants also assert that the judgment is void because the pretrial judge and the trial judge were stockholders and directors of a title company which was joined as a defendant. This contention was first asserted in affidavits supporting the present motion, made after judgment. The point is without merit. It appears that at the outset of the pretrial conference, plaintiffs-respondents dismissed as to the title company. Formal written dismissal was filed before trial, but some 12 days after the pre-trial conference. However, the written request to dismiss specified by the code (Code Civ.Proc., § 581(1)) is not a mandatory or exclusive means of dismissal. Request in open court, and order thereon, is equally effective. Richards & Knox v. Bradley, 139 Cal. 670, 62 P. 316; McDonald v. California Timber Co., 2 Cal.App. 165, 83 P. 172. Thus the action was terminated as to the title company at the outset of the pre-trial conference. The only grounds of disqualification urged are personal or financial interest. Code Civ.Proc., § 170, subds. 1, 2. In view of the dismissal, no such interest appears.
Appellants also filed an affidavit alleging that the broker's license of respondent McLean and that of McLean & Holland, a partnership, were suspended September 17, 1954....
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...is neither exclusive nor mandatory. (Richards v. Bradley (1900) 129 Cal. 670, 672, 62 P. 316; Holland v. Morgan & Peacock Properties Co. (1959) 168 Cal.App.2d 212, 213, 335 P.2d 773; see also Code Civ. Proc., § 581, subd. (m).) Even assuming it is exclusive, the first amended complaint itse......
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...the conclusion reached by the trier of fact (Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429, 45 P.2d 183; Holland v. Morgan & Peacock Properties, 168 Cal.App.2d 212, 335 P.2d 773); and appellant here has not demonstrated that there is not substantial evidence to support the challenged fin......
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...F.2d 328, 331; Annotation 169 A.L.R. 798, 809; and 9 Wigmore, Evidence, § 2594a, pp. 597-601 (3d Ed.) In the Holland case cited above, at 335 P.2d 773, it was pointed out that the jury is charged to determine the truth on all the evidence. Thus, it is clear that testimony of a plaintiff whi......
- Holland v. Morgan & Peacock Properties Co.