Gallagher v. Delaney — 10 Cal. 410

Majority

p. 410

GALLAGHER v. DELANEY.

Headnote

It is error to render a final judgment on demurrer to plaintiff's complaint. Where the complaint is defective, the Court should sustain the demurrer, with leave to the plaintiff to amend his complaint,* and if the plaintiff then declines, judgment final should be given.

Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.

In this case, the defendant demurred to the complaint, and the Court entered final judgment, sustaining the demurrer, and dismissing the complaint. From this judgment, the plaintiff appealed to this Court.

Baine and Bouldin for Appellant.

Terry, C. J., and Field, J., concurring.

In this case, the Court below rendered final judgment on the defendant’s demurrer, and dismissed the complaint. The judgment should have been sustaining the demurrer, with leave to the plaintiff to amend; and, if he declined, then judgment final. The complaint is so drawn as to leave no little doubt as to the purpose of the pleader. • If the object be to enforce a trust, the complaint should so distinctly aver, and the prayer should correspond. The complaint may be so amended as to present distinctly the plaintiff’s claim to the relief he seeks.

Judgment reversed, and cause remanded, without costs.