Elaterite Varnish & Rubber Co. v. Chamberlin Metal Weather Strip Co.

PLUMMER, J.

Plaintiff had judgment against the defendant for the sum of $645.65, the balance alleged to be due from the defendant to the plaintiff for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant at the latter’s special instance and request. The defendant’s answer admitted the purchase as alleged by the plaintiff, but as a defense to the action set forth a cross-complaint by which it sought to recover from the plaintiff the sum of $3,166.88.

[306]

Before taking np the consideration of the questions presented by this appeal it may be well to recite a few facts shown by the record, which, to some extent, may disprove the usual charge that courts are responsible for delays in litigation.

The transcript on appeal was filed on July 6, 1926. The appellant’s opening brief was served and filed on the twenty-fifth day of August, 1926. This brief consisted of three and one-half pages of printed matter. The respondent’s brief, consisting of fourteen pages, was filed on December 1, 1928, just two years, three months and seven days after the receipt of a three and one-half page brief.

At the trial of the action the plaintiff objected to any testimony which could be used to support the defendant’s cross-complaint, on the ground that it did not state a " cause of action. The objection being sustained, the defendant asked and was granted leave to file an amendment to its cross-complaint. Upon the filing of this amendment, the plaintiff demurred thereto, specially, raising the points which we will hereafter consider. This demurrer was sustained and the defendant denied the privilege of filing a further amendment to its answer, or further amended cross-complaint. The record shows that the complaint in this action was filed in April, 1924; that the defendant’s answer and cross-complaint were filed on the twenty-fourth day of April, 1924, and that the action came on for trial on the second day of November, 1925. It is urged that the court abused its discretion in denying the appellant the privilege of filing a further amendment to its cross-complaint. The time elapsing between the beginning of the action, or even after the filing by the defendant of its answer and cross-complaint, until the day of trial, covering, as it did, a trifle over one year and a half, certainly afforded the appellant ample opportunity to study its pleadings and determine therefrom whether a cause of action was stated, and time enough to enable the appellant to be prepared with a good and sufficient answer if the facts existed to warrant the same, without causing a delay of the trial when the cause was called for hearing. A consideration of these facts is necessary in determining whether the court did abuse its discretion. While under section 473 of the Code of Civil Procedure amendments to pleadings are