60 Cal. 240 | Cal. | 1882
Lead Opinion
The plaintiff brought this action in the late District Court of Mono County to recover damages for injuries sustained by him through the alleged carelessness of an employee of the defendant. The case was set down for trial on the sixth day of April, 1880, and on that day the plaintiff appeared by his attorneys and the defendant by Frank Owens, one of its attorneys, and the parties proceeded to impanel a jury to try the case. The Court then adjourned until the following day. At the opening of the Court on the morning of the seventh day of April, the defendant, by its counsel, moved- the Court “ for leave to file an additional pleading,” averring and alleging “ that since the last trial of this cause there had been a full and final settlement of all matters embraced in this cause, and set forth in plaintiff’s amended complaint; and that a full release and satisfaction had been made and delivered by said plaintiff to this defendant. Counsel for the defendant also stated to the Court that he should have been in attendance on the Court on the previous day, but was unavoidably prevented by interruption in travel; that no one of the defendant’s counsel who had actually participated in the former trials of this cause was present, having been notified by the defendant that said cause was settled, and that they would not be required further; that Frank Owens, attorney for defendant, having been but slightly connected with the former trials, and knowing that John R. Kittrell and T. W. W. Davies, leading attorneys of the defendant, would be present on the morning of the seventh of April, had not felt it his duty to assume the responsibility of pleading said release, and that said Owens, attorney for defendant, was fully advised before the impaneling of the jury of said release; and the Court was not advised of any alleged settlement until now, the
On the following day after the plaintiff’s case was closed the defendant’s counsel renewed his motion for leave to file a supplemental answer, which motion was again denied by the Court. The supplemental answer was submitted to the Court, a copy thereof was served upon the plaintiff’s attorneys and profert was made of the release. In denying the defendant’s motion, the following reasons were given therefor by the Court: “Because it appears that the pretended settlement was made on the twenty-ninth day of March, 1880, and that the same was kept a profound secret from the Court and from plaintiff’s attorneys. That a jury was permitted to be impaneled before any such settlement was made known to the Court. That said pretended settlement does not come before the Court with that fairness and honesty that should characterize proceedings in courts of justice. This Court is of the opinion that such practice is reprehensible, and not to be tolerated. That the manner in which said pretended settlement was brought before the Court cannot be regarded in any other light than that of trifling with the Court. The plaintiff in the case having disappeared from, the country, the Court has no knowledge in what manner or by what means, whether just or unjust, said pretended settlement was brought about. The fact that said pretended settlement was kept a secret from the attorneys for both parties, at the time of the making thereof, and, from the knowledge of the Court, until after the impaneling of the jury, taints said settlement with grave suspicions of the fairness and integrity of said pretended settlement.” The defendant offered in evidence the release, and proof of the execution thereof, together with the proceedings of the Board of Trustees of the defendant, all of which papers were objected to and excluded by the Court. On this appeal, the action of the Court in refusing to allow the defendant to
By Section 464 of the Code of Civil Procedure it is provided that “the plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case, occurring after the former complaint or answer.” In the case of Hoarding v. Minear, 54 Cal., 502, Department One of this Court held that “the right to file a supplemental answer is not an absolute and positive right, but is made to depend on the leave of the Court in the exercise of a legal discretion. And, say the Appellate Court of New York, the Court must grant leave unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave. * * The application may be refused, if the new defense, although legal, is inequitable.” (Medbury v. Swan, 46 N. Y.,200; Holyoke v. Adams, 59 Id. 233.)
In the case of Medbury v. Swan, supra, there was a delay of more than a year in the application to set up a discharge by supplemental answer, and the Court of Appeals held that such application was addressed to the discretion of the Court below. It was further held in that case, that no appeal would lie from the action of the Court on such a motion. But in the latter case of Holyoke v. Adams, 59 N. Y., 233? the language of the case in 46 N. Y. is explained, and it is there stated “that generally, a defendant has a right to set up by supplemental answer matter of defense which has occurred or come to his knowledge subsequently to the putting in of his first answer, but that he must apply to the Court by motion for leave so to do, so that the opposite party may be heard, and the Court may determine whether there has been inexcusable laches, or whether any of the reasons appear which are recognized as giving authority for denying the exercise of the general right in this particular instance. And the Court must grant leave unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave. It is claimed that Med-bury v. Swan, 46 N. Y., 200, is in conflict with this. There may be expressions there which, if separated from the con
In the case of Drought v. Curtiss & Park, 8 How. Pr. 56, the Supreme Court of Hew York held, “When the facts asked to be incorporated and pleaded in a supplemental answer, go to divest the plaintiff of the right to maintain the action, and transfer the cause of action to another, who has received satisfaction for the demand involved in it, it is the duty of the Court to grant the motion. The word may, in such a case, means must; and it will make no difference whether the motion be made at the earliest day or not. The facts amount to an entire satisfaction of the cause of action, and whenever pleaded and established, they utterly extinguish the plaintiff’s right to prosecute it.”
The above case is a very strong one, and it is not necessary for us to hold that the word may means must, as was held by the Supreme Court of Hew York. We have no decision in this State which covers the case now in hand; but under the section of the Code (473) relating to amendments of pleadings, it is provided that “ the Court may, in furtherance of justice, and on such terms as may be just allow a party to
This brings us to a consideration of the facts presented in the case now before us. The trial of the case commenced on the sixth of April, and a jury was impaneled on that day. The defendant was represented by Mr. Owens, a junior counsel in the case, and Mr. Davies, the senior and leading counsel for defendant, was on his way from Carson City, his place of residence, to Bridgeport, the county seat of Mono County, to attend the trial and take charge of the defense. He started in time to reach Bridgeport before the trial commenced, but was prevented from reaching his destination until the following morning by reason of interruption in the travel. As it was, he traveled all night, and was present at the opening of the Court on the following day. At that time and before any evidence was taken in the case, Mr. Davies moved for leave to file a supplemental pleading, with a view to bring before the Court, and put in issue in the case, the release, which it was claimed, had been executed by the plaintiff to the defendant. The Court refused to allow the supplemental answer to be filed, and proceeded to the trial of the case, upon pleadings which did not allow such defense to be made. The release, it is said, was executed without the knowledge of the attorneys, but the bona fides of the transaction was not attacked; and there was no circumstance before the Court, save and except the fact that the attorneys were not consulted in the matter, to cast suspicion upon the settlement of the case, claimed to have been made by the parties thereto. We think there were no laches, and the Court should have permitted the defendant to plead the release. (See Grady v. Branded, 59 Cal. 105). The Court might have imposed terms upon the defendant, such as the payment of costs, and should have continued the case, if a
The judgment and order are reversed.
Myrick, Sharpstein, and Thornton,.JJ., concurred.
Dissenting Opinion
We do not understand the facts to be exactly as stated in the foregoing opinion. We adhere to the views expressed when the case was before Department One, and therefore dissent from the judgment now given.
The following is the opinion of Department One referred to:
Upon the case as presented in the transcript we can not say that the evidence was insufficient to show negligence on the part of the employee of defendant in the transaction of the business of his agency. Nor can we declare that there was not evidence to sustain the finding that plaintiff was not guilty of contributory negligence.
It is urged by respondent that the action of the Court below in refusing to allow the supplemental answer was either correct or it was more than error—was an abuse of discretion, and that an abuse of discretion can only be presented by affidavit. (C. C. P. 657, sub. 1.) But by Section 647 of the Code of Civil Procedure, an order refusing to allow an amendment to a pleading is “deemed to have been excepted to.”
The circumstances under which defendant applied to file an amended or supplemental answer, in the nature of a plea puis darrein continuance, were such as justified the Court in denying it. Section 473 of the Code of Civil Procedure, after authorizing an amendment by adding or striking out the name of a party, provides: “The Court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars.” It would seem that whether a party should be allowed to plead a matter arising puis darrein continuance was always a matter of discretion. (Harding v. Minear, 54 Cal. 502, and cases cited.) The refusal to permit the amended or supplemental answer was not, upon the facts as they appear in the transcript, an abuse of discretion.
An application for leave to file a supplemental answer, setting forth facts which have occurred since the last continuance, will ordinarily, if made promptly, be allowed almost of course. But the application should be made promptly and as soon as its necessity is ascertained. (2 Wait’s Pr. 470.) Here the facts were known to one of defendant’s attorneys before the action was called for trial. The application was not made, however, until the day after the jury was impaneled, and after counsel for plaintiff had opened his case to the jury.
In this State an attorney has, perhaps, no lien for his costs. But may not the Court—in deciding, in its discretion, whether a party shall be allowed, pending the trial, to plead a release, executed on a settlement of the cause of action which was made prior to the trial—consider the circumstances that the settlement was made behind the back of the attorney of one of the parties; perhaps in fraud of his rights, certainly when the party was deprived of the supervision and protecting care of his chosen legal adviser? Such settlements ought not to be encouraged, and if they are to be enforced at all, should be enforced only through the medium of a plea proffered at the earliest practicable moment.
Judgment and order affirmed.
Concurrence Opinion
I concur in the judgment, for the reason that the denial of the Court below of the motion made by the defendant to file the supplemental answer presented to the Court was, under the circumstances on which the motion was made, an abuse of judicial discretion.