121 Cal. 414 | Cal. | 1898
Lead Opinion
The verdict and judgment were for plaintilf. Defendants appeal from the judgment and from an order denying their motion for a new trial.
The motion for a new trial was made upon a statement of the case; and respbndeñwobjects to the consideration of the statement, on the ground that the proposed statement and amendments thereto were not presented to the judge for settlement, or left with the clerk for the judge, within the time prescribed by the Code of Civil Procedure. The statement was prepared in proper time and amendments duly proposed, and
The court granted the motion, and thereafter, against plaintiff’s objections, settled the statement as it is here presented. There is no doubt that the court had power to do this. As was-held in Stonesifer v. Kilburn, 94 Cal. 33, the settlement of a statement is a “proceeding” within section 473 of the Code of Civil Procedure; and under that section the release of a party from a proceeding taken against him through mistake, inadvertence, etc., is a matter- largely within the discretion of the trial ' court. An order granting such release will not be disturbed here,, unless it clearly appears that the court or judge was guilty of gross abuse of discretion in making it. Indeed, it has been frequently said here that in cases of doubt the court ought to resolve the doubt in favor of the application, so that the full merits of the litigation might be presented. (Buell v. Emerich, 85 Cal. 116; Wolff v. Canadian Pacific Ry. Co., 89 Cal. 332; Grady v. Donahoo, 108 Cal. 211; Harbaugh v. Honey Lake etc. Co., 109 Cal. 70.) In the case at bar the evidence upon the point clearly warranted the court in setting aside its order and settling the statement; and in doing so the court certainly did not abuse its discretion.
The respondent, while riding a bicycle, came into contact with a horse and wagon belonging to the appellants and was injured thereby; and this suit is brought to recover damages for the alleged injury.
In their answer the appellants, in addition to denials, set up two separate and distinct defenses, to wit: 1. That at the time of the collision the horse and wagon were not under the con
Section 441 of the Code of Civil Procedure provides that “The defendant may set forth, by answer, as many defenses and counterclaims as he may have,” and that “they must be separately stated”; and in Bell v. Brown, supra, the court, referring to section 441 of the Code of Civil Procedure, says: “It does not attempt to make any distinction between the two (verified and unverified pleadings), or to make any rule which does not apply equally to both. The right to set up numerous defenses in a suit is equally as important to the defendant in the one. case as in the other. It is an absolute right given him by law, and the principle is as old as the common law itself.....In many cases it would be an absolute denial of justice if a defend
■ The court properly held that an offer to prove a certain compromise'was not admissible—after it had already admitted some evidence on the subject; but whether or not the appellants were prejudiced by the admission of such evidence, notwithstanding the fact that it was afterward stricken out, will not arise on another trial, and need not be now considered.
We see no other point in the case necessary to be discussed.
The judgment and order appealed from are reversed and the cause remanded for a new trial.
Concurrence Opinion
I concur, but desire to state that I concur in the conclusion on the point discussed solely because it was so held in Stonesifer v. Kilburn, supra. I think, however, that case was wrongly decided. Section 473 of the Code of Civil Procedure authorizes the court to relieve a party from a judgment, order, or other proceeding taken against him. In that case no default or other order had been taken against the moving party when the affidavits were made and the notice given by the moving parties of their application to be relieved; no objection had been made to their right to have the bill of exceptions settled, other than that the service of the notice to settle was accepted subject to objections. There was then noth
In fact the application in Stonesifer v. Kilburn, supra, was simply- to prevent the party .opposing the motion from successfully urging the objection that he had lost his right by failing to move in time. Previously this court had held that, if the time was allowed to lapse, the court could not then grant further time and could not settle the statement. The Stonesifer case simply reverses these rulings and holds that under such circumstances the court can, and if the delay is excused will, settle the statement.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.