Friedlander v. Sumner Gold & Silver Mining Co.
Synopsis
Contempt of Court.—The employment of language by counsel in this court manifestly disrespectful towards a Judge of the Superior Court, constitutes contempt of this Court.
Trial—Cross-Complaint—Continuance.—In an action to foreclose a mortgage the defendant, in his answer, pleaded certain matters by way of cross-complaint, and before the cross-complaint was answered or demurred to, or the time for answering or demurring had expired, the cause was called for trial, a motion for continuance by defendant denied, a trial had, and judgment rendered for the plaintiff.
Held: The action was not in a condition to be tried. It is not necessary to decide whether the insufficiency of a pleading can in any case be considered upon a motion for a postponement of the trial; it is enough to say that this ought not to be done, unless the pleading totally fails to set forth the cause of, action or defense. In this case, as the cross-complaint was not so totally defective as that ic could have been stricken out on motion, or as that it was subject to a general demurrer; and as it was neither answered nor stricken out, nor demurred to, generally or specifically, but remained one of the pleadings on which the case was to be tried, the Court below was not authorized to disregard its allegations, nor to proceed to a trial of the action before the issues were fully made up.
The Court : It has been made to appear to our satisfaction, that the [117]“ points and authorities,” in which are found certain objectionable expressions, apparently disrespectful to the Court below, were not prepared by counsel by whom they are signed; that when the proofs were submitted to counsel, the expressions referred to were marked for erasure, but the same were inadvertently printed, etc. Counsel, by written communication, having disavowed the objectionable language, and a copy of such communication having been transmitted to the learned Judge below, we accept the explanation as fully establishing the fact that the language complained of was not intended to be a part of the points filed, and acquit counsel of any fault, except, perhaps, a degree of carelessness in not making a new examination of the points after they were printed.
But, inasmuch as the language constitutes part of the points as actually filed, it is ordered that the “ points and authorities” of appellants be-stricken from the files of this.Court.
Nevertheless, we have looked into the record.
If, unfortunately, counsel in any case, shall ever so far forget himself as willfully to employ language manifestly disrespectful towards the Judge of the Superior Court—a thing not to be anticipated—we shall deem it our duty to treat such conduct as a contempt of this Court, and to proceed accordingly. Even in such case, however, the party represented by counsel committing the offense, ought not ordinarily to be deprived of any of his legal rights, and- We would reserve the power to examine the transcript to ascertain if errors had occurred in the Court below.
In the present case, in which no intentional offense has been committed, it is peculiarly our duty to read the transcript. Looking into the record, we see that appellants filed cross-complaints in the Court below. Plaintiff' had not answered nor demurred to the cross-complaints, nor had the time for answering or demurring to the same expired when the cause was called for trial and the motion for continuance made; nor had such time expired when the cause was tried, or when the decree was entered from which this appeal was taken. Plaintiff made no motion to strike 'out the cross-complaints, and until they were stricken out was certainly not entitled to a default.
It is clear, therefore, that the action was not in a condition [118]
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