Seehorn v. Big Meadows & Bodie Wagon Road Co.

Morrison, C. J.: 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 [248]second day of trial and after the impaneling of the jury; and that said release had been obtained, and all the negotiations concerning the same had been had, without any participation or knowledge of the same by any attorney of defendant. That after argument the Court overruled and denied defendant’s motion, said motion being objected to by plaintiff’s counsel, to which ruling of the Court the defendant, by its counsel, then and there duly excepted.”

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