
    [L. A. No. 3462.
    Department One.
    April 19, 1915.]
    JOHN LAPIQUE, Appellant, v. CATHERINE AGOURE et al., Respondents.
    Negligence—Death Resulting from—Mere Stranger cannot Maintain Action for—Dismissal by Court Sua Sponte—Frivolous Appeal.—The trial court has power to dismiss of its own motion and without notice to any of the parties, an action against the widow and heirs of a deceased person ,to recover damages in the sum of one million dollars for the death of such deceased through the alleged negligence of the defendants, where the complaint fails to show that there was any relationship whatever between the plaintiff and the deceased, but merely alleges that the plaintiff, as a surviving partner of a copartnership of which the deceased had been a member, had suffered the damage by reason of the loss to the partnership of the “society” of the deceased. The plaintiff is not prejudiced by such dismissal, and an appeal by him from the judgment will be deemed frivolous, for which damages will be awarded the respondents.
    APPEAL from a judgment of the Superior Court of Los Angeles County. F. R. Willis, Judge.
    The facts are stated in the opinion of the court.
    John Lapique, in pro. per., for Appellant.
    W. I. Foley, for Respondents.
   At the close of the argument, Shaw, J., delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring.

The action in this case was begun by the filing of a paper, designated a complaint, on January 20, 1913. Summons was served upon the defendants on January 22, 1913. On January 24, 1913, the court below of its own motion entered this order:

“In this case the complaint states no cause of action in favor of plaintiff nor any other person. It is not signed or filed by any attorney of this court or by any person having an interest in any cause of action stated therein. The references therein to the probate department of this court are contumacious and disrespectful, and this court believing that citizens should not be harassed by legal proceedings instituted by irresponsible persons and that courts, ought not to waste time and incur expense considering such pleadings, the court on its own motion orders plaintiff’s complaint stricken from the files and the cause dismissed. ’ ’

This order was duly entered as a judgment and the plaintiff appealed. It does not appear that either party was present when the order was made. The proceeding would perhaps have been more orderly and regular if the court had cited the plaintiff to appear before it at some fixed time to show cause why such an order should not be made and had then made the order. Regardless, however, of any question of the regularity of the proceedings, the order must be affirmed on the ground that by no possibility could it have produced any harm to the plaintiff. The so-called complaint presents a pretended cause of action so preposterous that it should not be tolerated by any court. The plaintiff claims one million dollars’ damages because of the death of Pierre Agoure, which, it is alleged, was caused by the negligence of the defendants. The defendants are the widow and heirs of Agoure and are the only persons in whose behalf an action could be maintained for Agoure’s death from the negligence of another. Actions for death caused by negligence cannot be maintained at all except in cases where the statute so declares. Sections 376 and 377 of the Code of Civil Procedure give the right to maintain such actions only to the parent, the personal representative, or the heir, or the guardian of an heir, of the person whose death has been so caused. The plaintiff does not show any relationship whatever to Mr. Agoure. He alleges that there was a partnership once existing between Agoure and two other persons named Menendez and he describes himself as a surviving partner, that is, a surviving partner of a firm of which he was not a member, and he alleges that the damages were caused by the loss to the partnership of the “society” of Agoure. Nothing quite so preposterous has, to our knowledge, ever been presented in any court. The only thing for a court to do with such a pretended cause is to dismiss it. Such dismissal could not have injured Mr. Lapique in the slightest degree.

The taking of this appeal could have had no other motive than that of keeping alive an action on a claim that was utterly without foundation. It could not have been for any other purpose than to cause the defendants the annoyance and delay that ensued from taking the appeal and perhaps as a means of securing some sort of a compromise. It is a case in which damages should be awarded.

The order appealed from is affirmed, and it is further ordered and adjudged that the defendants recover from the plaintiff the sum of one hundred dollars as damages because of this appeal.  