Carter v. Canty

California Court of Appeal

Carter v. Canty

152 P. 312, 28 Cal. App. 323, 1915 Cal. App. LEXIS 275

CourtCalifornia Court of Appeal

DecidedSeptember 1, 1915

DocketCiv. No. 1570.

StatusPublished

Cited by2 cases

This text of 152 P. 312 (Carter v. Canty) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. Canty, 152 P. 312, 28 Cal. App. 323, 1915 Cal. App. LEXIS 275 (Cal. Ct. App. 1915).

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Opinion

THE COURT.

This appeal is presented upon the judgment-roll alone, and is from the judgment and order denying defendant’s motion for a new trial.

The defendant asserts that the trial court committed error in sustaining plaintiff’s demurrer to its answer and counterclaim, and that for this reason the judgment against it must be reversed. But the defendant having filed an amended pleading after the demurrer to its original pleading was sustained, and the case having thereupon gone to trial and judgment, it must be held under the authorities in this state that it waived any error the court may have committed in so ruling. It is a well recognized rule that an amendment to any pleading after a demurrer is sustained thereto is a waiver of the right to object to any error in the sustaining of such demurrer. (Ganceart v. Henry, 98 Cal. 281, [33 Pac. 92] ; Brittan v. Oakland Bank of Savings, 112 Cal. 2, [44 Pac. 339]; City of Plankinton v. Gray, 63 Fed. 416, [11 C. C. A. 268]; Prescott v. Puget Sound Co., 31 Wash. 177, [71 Pac. 772].)

The judgment and order are affirmed.

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THE COURT.

This appeal is presented upon the judgment-roll alone, and is from the judgment and order denying defendant’s motion for a new trial.

The defendant asserts that the trial court committed error in sustaining plaintiff’s demurrer to its answer and counterclaim, and that for this reason the judgment against it must be reversed. But the defendant having filed an amended pleading after the demurrer to its original pleading was sustained, and the case having thereupon gone to trial and judgment, it must be held under the authorities in this state that it waived any error the court may have committed in so ruling. It is a well recognized rule that an amendment to any pleading after a demurrer is sustained thereto is a waiver of the right to object to any error in the sustaining of such demurrer. (Ganceart v. Henry, 98 Cal. 281, [33 Pac. 92] ; Brittan v. Oakland Bank of Savings, 112 Cal. 2, [44 Pac. 339]; City of Plankinton v. Gray, 63 Fed. 416, [11 C. C. A. 268]; Prescott v. Puget Sound Co., 31 Wash. 177, [71 Pac. 772].)

The judgment and order are affirmed.

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152 P. 312, 28 Cal. App. 323, 1915 Cal. App. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-canty-calctapp-1915.

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