
    Juan Maldonado, Appellant, v. Avalo-Collazo, Appellee.
    No. 4410.
    Decided July 23, 1928.
   Mr. Justice HutchisoN

delivered the opinion of the court.

In the brief for appellant a proposition to the effect that the court below erred in dismissing the action for want of prosecution was submitted without argument. For this reason the question was not discussed in the foregoing opinion. Appellant now moves for a re-hearing and says that during the oral argument sections 192 and 193 of the Code of Civil Procedure were cited to show that the court below could not dismiss the action because of the failure on the part of plaintiff to amend the complaint.

If, upon overruling the demurrer, the trial judge had inquired of counsel for plaintiff whether or not leave to amend was desired and, after having received a reply in the negative had dismissed the action, then there would have been no doubt about the power of the court to render such a judgment. 9 Cal. Jur. page 522, par. 14; King v. Montgomery, 50 Cal. 115.

Perhaps, after giving plaintiff ten days within which to amend the complaint, and following the failure to amend within the time so fixed, a motion for a judgment upon the pleadings, or the entry of a judgment in some other form than that adopted by the district court- would have been more appropriate. But, if necessary, the motion to dismiss might be treated as a motion for a judgment on the pleadings, and in the absence of anything to show what benefit would accrue to plaintiff from a modification in form of the judgment appealed from, we are not disposed to conduct an independent investigation along these lines.

There was no intimation in the, court below of inadvertence, mistake, or excusable neglect. Neither in the brief for appellant, nor in the motion for a re-hearing do we find any indication of a desire on the part of plaintiff to amend the. complaint or to go to trial on the merits even in the event of a reversal.

The motion must be denied.  