J. C. Peacock, Inc. v. Hasko

Decision Date26 August 1960
CourtCalifornia Court of Appeals Court of Appeals
PartiesJ. C. PEACOCK, INC., a corporation, doing business as J. C. Peacock Machine Co., Plaintiff and Respondent, v. John H. HASKO et al., Defendants, John H. Hasko, Leonard R. Greer, Ronald C. Hinman, Ernest Sanchez and Pacific Aircraft Products, a copartnership, Appellants. Civ. 23615.

Ralph W. Evans and Guy Richards Crump, Los Angeles, for appellants.

Danielson & St. Clair, Los Angeles, Deryl D. Shumway, Huntington Park, for respondent.

FOURT, Justice.

This is an appeal from a minute order (filed April 11, 1958) which was entered April 15, 1958, denying a motion of certain defendants to discharge a writ of attachment and an alias writ of attachment.

A resume of the proceedings is as follows:

Prior to January 14, 1953, the J. C. Peacock Machine Co. was a corporation duly organized and existing under the laws of the State of California.

On January 14, 1953, an agreement of merger between J. C. Peacock Inc., and J. C. Peacock Machine Co., corporations, together with certificates of each of said corporations, was filed with the Secretary of State of California and as of said date said corporations were merged. J. C. Peacock Inc. continued as the surviving corporation as defined in Corporations Code Section 4101.

On or about August 13, 1953, a verified 'Complaint for Fraud and Money Due' was filed. This complaint was captioned 'J. C. Peacock, Machine Co., a California corporation, Plaintiff * * *' (Emphasis added.) Paragraph I of the complaint reads in part as follows:

'That at all times mentioned herein the Plaintiff was and now is a corporation duly organized and existing by and in accordance with the laws of the State of California; * * *' (Emphasis added.)

On the same day an 'Affidavit for Attachment Against Resident Section 538' was filed. This was signed by J. C. Peacock, and captioned 'J. C. Peacock Machine Co., a California corporation, * * *' (Emphasis added.) Also on August 13, 1953 a purported 'Undertaking on Attachment' was filed, wherein J. C. Peacock Machine Co., a California corporation, was named as plaintiff and Hartford Accident and Indemnity Company as surety, in the amount of $27,183.19. Finally, on the same day, a purported writ of attachment was issued based upon the aforesaid affidavit and undertaking, which writ was levied on real and personal property of defendants.

On September 2, 1953, 'Demurrer--General and Special' was filed by defendants John Hasko, Leonard R. Greer, Ronald C. Hinman and Ernest Sanchez.

On September 10, 1953 an 'Alias Writ of Attachment' was issued, wherein J. C. Peacock Machine Co. was named as plaintiff, and thereafter levy made on the business and personal property of defendant, Pacific Aircraft Products.

On October 8, 1953, the verified 'First Amended Complaint for Fraud and Money Due' was filed. This complaint was also captioned 'J. C. Peacock Machine Co., a California corporation,' (Emphasis added) and it was set forth in Paragraph I thereof:

'That at all times herein mentioned the plaintiff was, and now is, a corporation duly organized and existing by and in accordance with the laws of the State of California; * * *' (Emphasis added.)

On October 28, 1953, a 'Demurrer General and Special' to the First Amended Complaint was filed by named defendants and Pacific Aircraft Products, the partners in which are T. M. Hinman, Earl C. Plummer and Leonard R. Greer.

On December 14, 1953, the verified 'Second Amended Complaint--for Fraud and Money Due' was filed. This complaint was also captioned 'J. C. Peacock Machine Co., a California corporation' (Emphasis added) and in Paragraph I thereof it was set forth:

'That at all times herein mentioned the plaintiff was, and now is, a corporation duly organized and existing by and in accordance with the laws of the State of California; * * *' (Emphasis added.)

On January 19, 1954, a 'Demurrer to Second Amended Complaint General and Special' was filed by the named defendants and Pacific Aircraft Products. On February 26, 1954, an 'Answer' to the Second Amended Complaint was filed by the named defendants. The 'Alias Writ of Attachment' which had been issued September 10, 1953, was filed March 18, 1954.

On March 28, 1955, a 'Notice of Motion for Order Declaring that Plaintiff Has Made Election of Remedies and Dismissing Certain Causes of Action of Plaintiff's Second Amended Complaint' was filed by the defendants, Hasko and other answering defendants.

On March 30, 1955, a 'Memorandum of Plaintiff in Opposition to Motion for Order Declaring that Plaintiff has Made Election of Remedies and Dismissing Causes of Action' was filed. In a minute order dated March 30, 1955, it is set forth that the trial court ruled as follows: 'Motion granted as to 1st, 2nd, 3rd and 4th causes of action and denied as to 5th, 6th and 7th causes of action.' On April 11, 1955, a 'Notice of Motion for Reconsideration of Motion of Defendants for Order Declaring that Plaintiff has Made an Election of Remedies and Dismissing Certain Causes of Action' was filed by the plaintiff. On April 13, 1955, the motion to reconsider was granted. In a minute order dated April 18, 1955, the court reaffirmed its ruling of March 30, 1955 and further stated:

'The transactions described in Court One could be the basis for the common count. Since they could be, plaintiff could and did elect. If such facts cannot be proved under the last count, not because of lack of pleading but lack of facts, that is the risk plaintiff took in so electing.'

The trial of the action was originally set for April 4, 1955, and was continued to July 18, 1955. In a minute order dated July 19, 1955, it is set forth:

'Trial is resumed from July 18, 1955 with parties and counsel present as before. The motion of defendants, submitted July 18, 1955 to exclude testimony by plaintiff on Counts 5, 6, and 7 of the Second Amended Complaint is interpreted by the court as a General Demurrer to said causes of action of said second amended complaint and is sustained. Plaintiff is given permission to amend same within 10 days from date hereof. The motion to exclude testimony is ordered off calendar. The trial is ordered off calendar subject to resetting after thirty days. * * *' (Emphasis added.)

On July 27, 1955, a verified 'Third Amended Complaint for Fraud and Money Due' was filed. This time however, and for the first time, the complaint was captioned 'J. C. Peacock, Inc., a California corporation, dba J. C. Peacock Machine Co.,' (Emphasis added.) Paragraphs I and II of the aforementioned complaint provide as follows:

'I

'That plaintiff is a corporation duly organized and existing under the laws of the State of California and since the 14th day of January, 1953, plaintiff has been doing business in the County of Los Angeles, State of California, under the fictitious firm name and style of J. C. Peacock Machine Co., and has caused to be published and filed with the County Clerk of the County of Los Angeles, State of California, a certificate as required by Sections 2466 et seq. of the Civil Code of the State of California.

'II

'That at all times herein mentioned prior to the 14th day of January, 1953, J. C. Peacock Machine Co. (hereinafter sometimes designated as plaintiff's predecessor) was a corporation duly organized and existing under the laws of the State of California. On the 14th day of January, 1953, an agreement of merger between plaintiff corporation, J. C. Peacock, Inc., and J. C. Peacock Machine Co., a corporation, together with certificates of each of said corporations, was filed with the Secretary of State of the State of California and as of said date said corporations were merged. That plaintiff corporation continued as the surviving corporation as defined in Corporations Code, Section 4101.' (Emphasis added.)

The certificate as required by Section 2466 et seq. of the Civil Code was not filed until early in 1955.

On August 8, 1955, demurrers to the third amended complaint were filed. Also, on the same date, notices of motions to strike the third amended complaint were filed. A minute order dated August 18, 1955, shows that the hearing on the demurrers and motions just referred to were continued to August 25, 1955. On August 22, 1955, a 'Notice of Motion for Leave to File Amendment to Complaint and Correction of the Name of Plaintiff, * * *' was filed.

A minute order dated August 25, 1955, shows that the demurrers and motions to strike were placed off calendar. The motion of plaintiff for permission to file an amendment to the second amended complaint in the form of the third amended complaint 'on file herein, and for correction and insertion of proper name of plaintiff set forth in third amended complaint on file' was granted. Each defendant excepted to each ruling.

'Points and Authorities in Opposition to Motion of Plaintiff for Leave to Substitute New Party Plaintiff' had been filed August 25, 1955.

On September 22, 1955, demurrers to the third amended complaint were filed. Also a notice of motion to strike from the third amended complaint was filed.

A minute order dated September 28, 1955, stated that the various demurrers and motions to strike were continued to November 9, 1955, and on November 9, 1955, the aforesaid matters were continued to November 23, 1955 and were subsequently continued to December 2, 1955. The minute order of December 2, 1955, indicates that the aforesaid matters were submitted on that date. On December 5, 1955, the demurrers were overruled and the motions denied.

On December 27, 1955, the answers of the defendants were filed to the third amended complaint. The action was set to be tried on May 7, 1956. By stipulation, the trial was continued to September 24, 1956, and was further continued to February 27, 1957. The trial was completed April 5,...

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