Clune v. Sullivan

Thornton, J.: Application for a writ of mandate. The answer on which this application was heard sets forth the following facts: On the 28rd of October, 1879, an action was duly commenced in the Twelfth District Court for the City and County of San Francisco, by the plaintiff, for the recovery of money and damages against Cadman and Gibson, as partners, under the firm name of H. Keller & Co. On the 14th of November, 1879, Cad-man and Gibson demurred to the complaint. • That thereafter the cause was duly assigned to Department Two of the Superior Court of the said city and county, the respondent herein, for hearing and its determination. On the 20th of February, 1880, the demurrer was argued and submitted to the Court for decision, and was sustained. The plaintiff, on the 24th of February, 1880, applied to the same court ex parte, and obtained an order dismissing defendant Gibson from the action, and giving plaintiff leave to file an amended complaint, substituting M. H. Fay, as defendant therein, in place of Gibson. No terms were imposed by the above order of amendment. On the 26th of February, 1880, the defendant moved the Court to vacate the order just mentioned. On this motion, the Court made an order, modifying and amending the order of amendment, requiring the plaintiff, as terms conditional thereto, to file an undertaking, in the [250]sum of SlOO, for payment of all costs that might be awarded against said plaintiff in the action, and staying all proceedings until this undertaking was filed. This was done, as is alleged in the answer, under the power conferred by § 473 of the Code of Civil Procedure, and in which it is contended the Court did abuse its discretion.

The writ is asked for in this cause to compel the Court below to proceed with the trial of the cause, though its order in regard to the undertaking has been disregarded.

The facts on which the Court made the order do not further appear than as above stated. What particular considerations induced the Court to make it arc not unfolded to us. But we cannot see that the Court in making it exceeded the power with which it was vested by the section of the Code of Civil Procedure above referred to, nor that it exceeded its discretion. (Tormey v. Pierce, 49 Cal. 308.)

ISTor is the objection, that the order was made subsequently to the order allowing the amendment, of any avail. The order of amendment was interlocutory, under the control of the Court, and might have been modified by the Court of its own motion.