Opinion
Docket No. 9110.
June 24, 1935.
APPEAL from an order of the Superior Court of Los Angeles County granting leave to file a fourth amended complaint and denying a motion for dismissal. Lucius P. Green, Judge pro tem. Reversed.
The facts are stated in the opinion of the court.
George Acret for Appellant.
Martin E. Geibel and Harry K. Cohen for Respondent.
[1] It appears that in due course of the proceedings in the instant action, in the presence of counsel who represented the respective parties therein, on a specified date the trial court made an oral order by which the application of plaintiff to file a fourth amended complaint was denied, and the motion made by defendant to dismiss the action was granted. Later, on the same day, in the absence of, and without notice to counsel who represented defendant, the trial court made another and different order in the premises, — the effect of which was to grant leave to plaintiff to file his fourth amended complaint, and the motion by defendant to dismiss the action was denied. On the day following the making of the latter of such orders, defendant appealed therefrom to this court. For sufficient reasons thereafter appearing, pursuant to a hearing on the return of a writ of prohibition, the Second Division of the Second District of the District Court of Appeal rendered its judgment by which the trial court was "restrained from proceeding further with the action" until the final determination of the instant appeal. ( Sarkisian v. Superior Court, 129 Cal.App. 342 [ 18 P.2d 739].) In effect it was there ruled that the second order made by the trial court was unauthorized and void. In reliance upon the correctness of the decision reached therein, it is ordered that the said order made by the trial court, and from which the appeal herein is taken, be and it is reversed.
Conrey, P.J., and York, J., concurred.