Beyne v. Van Aalst

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[Civ. No. 17165. Second Dist., Div. One. Aug. 15, 1949.]

PETER J. BEYNE, Appellant, v. JOHN VAN AALST, Respondent.


George Appell for Appellant.

Krag & Sweet and David T. Sweet for Respondent.



This is an appeal from the judgment.

[1] Plaintiff filed the within action for damages based on the alleged negligence of defendant, an attorney at law, for failure to file an action for damages for personal injuries before the statute of limitations foreclosed the action. When the action was called for trial, defendant made a motion for judgment on the pleadings based on the contention that plaintiff's "complaint was fatally defective in that it alleged a mere conclusion of law in the latter portion of paragraph V of said Complaint, wherein it recited, '... and negligently permitted said plaintiff's cause of action to become barred by the Statute of Limitations of the State of California in such cases made and provided.' " The court in ruling on the motion directed the entry of a minute order as follows, "Defendant's motion for a judgment on the pleadings is now denied on condition that plaintiff file an Amended Complaint within ten days from date hereof and leave to file said amended complaint is granted and defendant is given usual time to answer. Cause is ordered off calendar. Notice is waived." Plaintiff declined to amend and judgment followed from which plaintiff appeals.

It is well settled that a complaint so phrased is sufficient against a general demurrer or motion for judgment on the pleadings.

Judgment is reversed.

White, P. J., and Drapeau, J., concurred.

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