Wilson v. City of Los Angeles

• Court: California Court of Appeals
• Writing for the Court: RICHARDS; FOX, Acting P. J., and ASHBURN
• Citation: Wilson v. City of Los Angeles, 156 Cal.App.2d 776, 320 P.2d 93 (Cal. App. 1958)
• Decision Date: 17 January 1958
• Parties: H. J. WILSON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent. Civ. 22647.

Page 93

320 P.2d 93

156 Cal.App.2d 776

H. J. WILSON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent.

Civ. 22647.

District Court of Appeal, Second District, Division 2, California.

Jan. 17, 1958.

Rehearing Denied Feb. 11, 1958.

Hearing Denied March 12, 1958.

H. J. Wilson, in pro. per.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Spencer L. Halverson, Deputy City Atty., Los Angeles, for respondent.

RICHARDS, Justice pro tem.

On September 20, 1949, appellant filed his complaint in inverse condemnation against respondent City of Los Angeles which interposed a general and special demurrer and on February 1, 1950, the demurrer was sustained by stipulation with leave to amend in twenty days. No amended complaint was filed and slightly more than seven years later, on March 15, 1957, the respondent City of Los Angeles moved to dismiss the action on two grounds: (1) that the action had not been brought to trial within five years after the filing of the complaint (Code Civ.Proc. sec. 583) and, (2) that the appellant failed to amend his complaint within the time allowed by the court (Code Civ.Proc. sec. 581, subd. 3 ¹). Appellant opposed a dismissal under section 583 but submitted to a ruling of the court on the motion to dismiss under section 581, subdivision 3. On March 27, 1957, the motion to dismiss was granted and an order dismissing the action under section 581, subdivision 3, was entered upon the minutes of the court which constitutes a judgment (Code Civ.Proc. sec. 581d) and from which judgment this appeal is taken.

We have concluded that the demurrer having been sustained by stipulation, the judgment of dismissal following appellant's failure to amend, must be affirmed without reviewing the sufficiency of the complaint to state a cause of action upon the established principle that a judgment will not be reviewed or disturbed on an appeal which is prosecuted by a party who consented thereto. 3 Cal.Jur.2d, sec. 132, p. 590. In Adams v. Southern Pac. Co., 109 Cal.App. 728, 293 P. 681, at the request of the attorney for the plaintiff, the demurrers of certain defendants were sustained without leave to amend and the plaintiff thereafter appealed from the judgment entered thereon. The court said in 109 Cal.App. at page 731, 293 P. at page 682: 'It is well-settled law in California that a party cannot object to a judgment, order, or ruling consented to by him. Ackerman v. Schultz, 178 Cal. 190, 172 P. 609; Baker v. Eilers Music Co., 175 Cal. 652, 166 P. 1006. This court will not disturb an order or judgment on an appeal taken by a party who consented thereto. Hibernia Savings & Loan Soc. v. Waymire, 152 Cal. 286, 92 P. 645. Appellant having requested that the demurrer of Cole and Long be sustained without leave to amend, he must be held to have consented to the judgment entered in their favor, which followed as a matter of course. The judgment in favor of these defendants must be sustained.' In Christina v. R. Z. Adams Co., Inc., 16 Cal.App.2d 139, 60 P.2d 186, the defendants demurred to the plaintiff's complaint and the minute order showed that the demurrer was sustained without leave to amend by consent and a judgment for the defendants ensued. In affirming the judgment without passing upon the sufficiency of the complaint the court said in 16 Cal.App.2d at page 140, 60 P.2d at page 187: 'In such circumstances, the authorities are numerous, in substance, that the plaintiff waived the right of appeal from the judgment, and thereafter was not privileged to test the question of the sufficiency of the complaint by such an appeal. Adams v. Southern Pacific Co., 109 Cal.App. 728, 731, 293 P. 681; Reed v. Murphy, 196 Cal. 395, 238 P. 78; and authorities therein respectively cited.' In Linder v. Russian Health Baths, 131 Cal.App.2d 621, 281 P.2d 314, it appears that one of the defendants cross-complained against a third party whose demurrer to the cross-complaint was sustained without leave to amend with the consent of the cross-complainant. Relying upon Adams v. Southern Pac. Co., supra, 109 Cal.App. 728, 293 P. 681, the court said in 131 Cal.App.2d at pages 621-622, 281 P.2d at page 314: 'A party may not appeal from a judgment entered with his consent.'

Although the foregoing cases deal with appeals taken from judgments following the sustaining of demurres without leave to amend, we believe that the same principle applies to the instant case wherein the demurrer was sustained with leave to amend by...