Lawton v. Pacific Coast Casualty Co.

On Motion to Dismiss Appeal. MONROE, C. J. Plaintiff sues as beneficiary of a policy of insurance taken out by her husband in the Pacific Coast Casualty Company, a foreign corporation, and prays for judgment against that company and also against the National Surety Company, as the surety of the company first named. [1] The casualty company filed an answer admitting that it owes plaintiff $100, and alleging that it had made a legal tender of the same. The surety company filed exceptions of “prematurity” and no cause of action. The exception of prematurity was sustained by judgment rendered on October 6, 1915, and entered on the minutes of the court, but not written out and signed. On November 11th following there was judgment on the merits in favor of plaintiff “in the sum of $135 against” the defendant “in this suit, said judgment covering the liability on said insurance and the costs of the court up to the date of said legal tender made by” the defendant “herein,” and on the same day an order was entered granting an appeal to plaintiff and defendant, of which plaintiff availed herself by filing a bond for appeal “from the judgment rendered on the 11th day of November 1915,” and thereafter lodging the transcript in this court. The National Surety Company now moves to dismiss the appeal, so perfected, in so far as it may be concerned; but, as is evident from the foregoing statement, it is not a party to the judgment appealed from, and it is not at all concerned in the appeal. The motion to dismiss is therefore denied. DAWKINS, J., takes no part.