Pierson v. McCahill

22 Cal. 127 | Cal. | 1863

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This action was brought to enforce a contract, in the District Court of the Twelfth Judicial District, in the City and County of San Francisco, and the defendant being a resident of the County of San Joaquin, the action was removed for trial to the District Court of that county on his application. A trial was had in the latter Court and a judgment rendered for the defendant, from which an appeal was taken, and this Court reversed the judgment and ordered a new trial. Upon the return of the case the defendant moved the Court below, upon affidavit and notice, for leave to amend his answer by setting up an alleged mistake in the contract sued on, for want of which allegation the judgment had been reversed by this Court. The Court granted leave to amend and the plaintiff excepted. The plaintiff then moved the Court, upon the pleadings and affidavit and notice, to change the place of trial to the City and County of San Francisco, which was denied and the plaintiff excepted.

The first error assigned by the appellant is, that the Court erred in allowing the defendant to file an amended answer. The amendment asked for was evidently necessary to enable the defendant to fully and fairly present his defense to the action. The fact that the new matter set up by the amendment was well known to the defendant when he filed his original answer was no good reason why he should not have been permitted to amend. The rules relating to the amendment of pleadings are properly very liberal, and much is left to the judgment and discretion of the Court below. In this case there was no error in permitting the defendant to amend.

The Court also granted the defendant one day to file counter affidavits on plaintiff’s motion to change the place of trial, and this is also assigned as error. This is also a matter of discretion in the Court, and the Court very properly granted time to file counter affidavits. If thereby the plaintiff required further time to prepare for his motion, the Court would undoubtedly have granted it; but no application to that effect seems to have been made.

The next error assigned is- that the Court ought not to have refused plaintiff’s motion for a change of the place of trial. We see no error in this action of the Court. When the defendant applied for a change of the trial from San Francisco to San Joar quin, if the convenience of witnesses required that the action should be retained for trial in San Francisco, the plaintiff should have presented that fact in opposition to that motion, and if he neglected to do so, it is doubtful whether he could afterwards apply to the Court to which it had been thus removed to have it sent back again. (Loehr v. Latham, 15 Cal. 418.) The granting of such motion is discretionary with the Courts, subject to review only in cases of abuse. (Sloan v. Smith, 3 Id. 412.) No such abuse of discretion is shown in this case.

Judgment affirmed.