Lincoln Holding Corp. v. Union Indemnity Co.

This is an appeal by plaintiff from a judgment on the pleadings and also from an order striking from the files the second amended complaint and from an order denying relief to plaintiff under section 473 of the Code of Civil Procedure. Plaintiff went to trial October 11, 1929, upon his first amended complaint. During the trial, defendant moved for judgment on the pleadings, and the following order was then made: “Motion for judgment on the pleadings is denied on condition that plaintiff amend its complaint within five days; leave to file second amended complaint within five days is hereby granted. ’ ’

On November 7, 1929, no amended complaint having been filed, defendant moved for the entry of judgment on the pleadings in accordance with the order previously made and fixed the time for hearing said motion for November 13th. On the day prior to the hearing thereof, plaintiff filed its second amended complaint.

Upon the hearing of the motion for judgment on the pleadings and to strike the amended complaint from the files, motion for judgment was denied, but permission to file the second amended complaint was granted, without prejudice.

On November 19th, defendant renewed its…