A. Hamburger & Sons, Inc. v. Kice

18 P.2d 115, 129 Cal. App. 68, 1933 Cal. App. LEXIS 1011

• Court: California Court of Appeal
• Decided: January 20, 1933
• Docket: Docket No. 7511.
• Status: Published

Opinions

YORK, J.

The judgments herein appealed from were entered after demurrers to the amended complaint of plaintiff and appellant had been sustained. The amended complaint was in two counts, the first being an action upon stockholders’ liability growing out- of a promissory note. No question is raised by appellant as to the propriety of the order sustaining demurrers to the first count of the complaint. After leave of the court had been had and obtained, appellant filed this amended complaint, which amended complaint for the first time set up a second count in addition to a reiteration of the first count contained in the original complaint, said second count seeking declaratory relief under section 1060 of the Code of Civil Procedure. The demurrers were sustained by the court solely on the ground of lack of jurisdiction; therefore, the sole question presented upon this appeal, as stated by appellant, is whether or not the court had jurisdiction over plaintiff’s second cause of action. An examination of the amended complaint discloses that, if the facts stated were true, plaintiff had a good cause of action against the defendants, if brought in the municipal court, and that the superior court had no jurisdiction over the first cause of action. This being so, the plaintiff had no right by way of its amended com-' plaint to request the court to take cognizance of the matter under section 1060 of the Code of Civil Procedure, as it had a plain, speedy and adequate remedy at law to enforce its rights, if any, as set forth in the first cause of action of said amended complaint by a suit in the proper forum.

The judgments appealed from are affirmed.