Hesse v. Railway Federal Savings & Loan Ass'n
Hesse v. Railway Federal Savings & Loan Ass'n
Opinion of the Court
pro tem. — This is an appeal from a judgment of dismissal following an order by the trial court sustaining respondents’ demurrer to appellant’s fifth amended eomplaint without leave to amend.
The demurrer of respondents was both general and special. We will consider the special grounds of demurrer first, because if any of the grounds of special demurrer are well taken, it will not be necessary to decide the principal question discussed in the briefs.
The fourth ground of demurrer is “that the complaint, and particularly Paragraph IX thereof, is uncertain in that it cannot be ascertained therefrom, nor from any part thereof, how, or in what manner the demands of the trustee were wanton, arbitrary, fraudulent or unjust.” In paragraph VII of the complaint it is alleged there was “default in the payment of advances made under the terms of said deed of trust in the principal amount of $731.00, etc.” but that charges were arbitrarily and wantonly made, in that said alleged “advances” were not allowed or justified under said deed of trust, nor permitted under its terms. The complaint then alleges that the trustee proceeded with the sale and ‘ ‘ did require and demand as a purchase price of said property all of the principal, interest, alleged advances, and trustee’s expenses and charges,” and sold the property to respondent for the total sum of $4187.50; and that save for the wanton, arbitrary, fraudulent and unjust demands of said trustee, plaintiff would have paid the amount justly due.
The basis of the attack upon the inclusion of advances of $731.41 in the notice of default and in the notice of sale, is that they were not allowed nor justified under the deed of trust. Nowhere in the complaint is there any statement or allegation as to what the alleged advances were for. Where it is alleged that the inclusion of advances under a deed of trust are wantonly or arbitrarily made, and that they are fraudulent and unjust, it should appear from the complaint just what such advances were for, so that it can be determined as a matter of pleading at least whether they are authorized. Appellant seems to assume that no advances for any purpose are justified under the deed of trust, but a reading of that instrument does not support this assumption. It
If the advances in question were for any of the purposes enumerated, they could not be considered as wanton, arbitrary, fraudulent or unjust. While the mere statement that such advances were not allowed nor justified under the deed of trust might be a sufficient allegation as against a general demurrer, we feel that in view of the provisions of the deed of trust, it must be held, in the absence of allegations showing just what the advances were for, the complaint is uncertain in that it cannot be ascertained therefrom how or in what manner the demands of the trustee were wanton or arbitrary or fraudulent or unjust. The trial court therefore properly sustained respondents’ demurrer to the complaint.
There is no showing that appellant made application for leave to amend, or expressed a desire to do so. The appellant makes no point on appeal as to the court’s denial of leave to amend. It should be borne in mind that the sale in question was on August 30, 1937, and that appellant’s fifth amended complaint was filed on January 24, 1938. The appellant had ample time in which to inform himself as to the facts. We should also bear in mind the familiar rule of construction that the pleader has stated his case as favorably as possible, and that all ambiguities therein must be resolved against the pleader. (Higgins v. Security Trust etc. Bank, 203 Cal. 398, 401 [264 Pac. 744].) While courts are inclined to hear a ease upon its merits, yet there must be an end of litigation. After filing five amended complaints, without stating a good cause of action, it can hardly be said that
Our conclusion as to the fourth ground of demurrer makes it unnecessary to discuss the other points urged in the briefs.
The judgment is affirmed.
Appellant’s petition for a hearing by the Supreme Court was denied September 11, 1941.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.