Llewellyn Iron Works v. McLain

204 P. 872, 56 Cal. App. 790, 1922 Cal. App. LEXIS 604

• Court: California Court of Appeal
• Decided: January 6, 1922
• Docket: Civ. No. 3785.
• Status: Published

Opinion

THE COURT.

By its complaint filed herein plaintiff sought to have a certain judgment, which was entered in favor of defendant and against plaintiff, set aside and annulled and execution thereof enjoined upon the grounds of alleged fraud, mistake, and want of jurisdiction. A demurrer interposed to the complaint by defendant was sustained without leave to amend, followed by a judgment dismissing the action, from which plaintiff has appealed.

[1] The judgment attacked and which it is sought to have annulled and set aside is that entered in the case titled McLain v. Llewellyn Iron Works, ante, p. 60. [204 Pac. 869], wherein, on an appeal therefrom by the defendant therein, who is plaintiff in the instant case, an opinion was filed in this court on January 6, 1922, reversing the judgment so appealed from. The effect of the order so made in that case is to set aside and annul the

judgment which is made the subject of plaintiff’s attack in this action. Hence the record presents a moot question only, and- for that reason the appeal is dismissed.

A petition for a rehearing of this cause was denied by the district court of appeal on February 3, 1922, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 6, 1922.

All the Justices concurred.

Lennon, J., was absent and Richards, J., pro iem., was acting.