Opinion
S. F. No. 6692. In Bank.
June 28, 1916.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J.M. Seawell, Judge.
The facts are stated in the opinion of the court.
Charles S. Wheeler, John F. Bowie, Cushing Cushing, and Nathan M. Moran, for Appellants.
Morrison, Dunne Brobeck, and A.A. Moore and Stanley Moore, Amici Curiae, for Respondents.
In the original complaint filed in this case, the persons named as plaintiffs were Claus A. Spreckels and Rudolph Spreckels, as executors of the will of Anna C. Spreckels, deceased, and Emma C. Ferris, Claus A. Spreckels, and Rudolph Spreckels, as individuals. Afterward, by leave of court, a second amended complaint was filed in which the only persons named as plaintiffs were Claus A. Spreckels and Rudolph Spreckels, as executors of the will of Anna C. Spreckels, deceased. The individual plaintiffs were omitted.
A demurrer to the second amended complaint was sustained and judgment was directed to be entered in favor of the defendants and against the plaintiffs. Thereupon judgment was made and entered that Claus A. Spreckels and Rudolph Spreckels, as executors of the will of Anna C. Spreckels, deceased, Emma C. Ferris, Claus A. Spreckels, and Rudolph Spreckels take nothing by the said action, and that defendants recover of said plaintiffs for the defendants costs amounting to $5.25. This is the same action as that involved in case No. 6756, Spreckels v. Spreckels, ante, p. 775, [ 158 P. 542], this day decided.
Claus A. Spreckels, Rudolph Spreckels, and Emma C. Ferris appeal from this judgment against them as individuals, claiming that as they were not parties to the action as individuals when the second amended complaint was filed and when the demurrer thereto was sustained, there was no authority to give judgment against them for the defendants' costs.
The judgment was not erroneous. They were parties plaintiff to the action when it was begun. It does not appear how the second amended complaint came to be filed, or why they were not made parties plaintiff therein. But the omission of their names worked a discontinuance of the action, so far as they were personally concerned, which is equivalent to a voluntary dismissal, and entitled the defendants to a judgment that they take nothing and for costs against them. The fact that such judgment was not immediately entered, but awaited the final determination of the case and was included in the judgment against the other plaintiffs, does not render it erroneous.
The judgment is affirmed.
Rehearing denied.