Wood v. Brush (1887) · DecisionDepot

Wood v. Brush

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 20, 1887 No. No. 9515Published

Before: Searls

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Holding. The court held that the defendant's original answer failed to state a defense and that the trial court properly denied the motion to file a supplemental answer because the proposed counterclaim was not a valid subject for an action at law and did not exist at the commencement of the action.

Issues

Whether the original answer stated a valid defense to the action on the promissory note.
Whether the trial court properly denied the defendant's motion to file a supplemental answer.
Whether a counterclaim arising after the commencement of an action can be set up against an assignee of a promissory note.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The original answer contained no defense to the action,, and was properly stricken out.”

Synopsis

Appeal from a judgment of the Superior Court of the city and county Of San Francisco.

In his supplemental answer, the defendant alleged the existence of a partnership between himself, the plaintiff, the plaintiff’s assignor, and several other persons, and that since the commencement of the action and the filing of the original answer he had advanced a certain sum of money in connection with the partnership business ' for the account of the plaintiff and his assignor.. The amount so advanced was pleaded as a counterclaim. The further facts are stated in the opinion.

Searls, C. This is an action upon a promissory notei for $875 and interest, made by defendant, payable to the- • order of W. W. Potter, and indorsed by the latter to the.plaintiff.

The sworn complaint contained a copy of the note, and is in the usual form

The answer is as follows:—

“ Now conies the defendant above named, and, answering the plaintiff’s complaint herein, avers that as consideration for the promissory note declared on in plaintiff’s complaint herein he received the sum of six hundred and nine and seventy-nine one hundredths dollars ($609.79), and no more. Wherefore he prays, judgment and for costs.”

Plaintiff moved to strike out the answer, and for judgment as prayed for in the complaint. Pending this motion, defendant obtained an order on plaintiff to show-cause why defendant should not be permitted to file a, supplemental answer.

At the hearing of the motion and order to show cause,, defendant failed to appear, and an order was entered granting the motion for judgment, and denying the-application to file a supplemental answer. Thereupon judgment was entered in favor of plaintiff, as prayed for in his complaint, from which judgment defendant appeals.

The original answer contained no defense to the action,, and was properly stricken out.

There is no statement or bill of exceptions in the record.

The supplemental answer, although presented to, the [226]clerk for filing, and marked as filed, did not become a pleading in the cause, so as to constitute a part of the judgment roll, until defendant's motion, permitting it to be filed as such pleading, was granted; and as leave was refused by the court, it never became a pleading, and is not entitled to consideration as a portion of the judgment roll.

Waiving all objections, however, to. the record and to its lack of authentication, and the leave to file a supplemental answer was properly refused, for the reasons:—

1. That defendant, after procuring an order on plaintiff to show cause, and having it set for hearing, failed to appear at such hearing, and the court might well have concluded he had abandoned the application to file a supplemental answer.

Wood v. Brush

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