Wheeler v. West

Works, J. Action to enjoin the defendants from entering upon and digging up gold-bearing gravel and [96]bed-rock on a mining claim of plaintiffs, and taking the gold therefrom.

This is the second appeal. On the former appeal it was held that the answer of the defendants admitting the acts complained of, and attempting to justify under a verbal contract, was insufficient, for the reason that the contract relied upon was not pleaded either in Time verba or according to its legal effect, and the cause was reversed for error of the court below in permitting the defendants to make proof of a contract not properly pleaded. (Wheeler v. West, 71 Cal. 126.)

Upon a return of the case to the court below, the defendants filed an amended answer to the plaintiffs’ amended complaint, in which it was stated that the original complaint alleged for cause of action that the defendants had taken possession of the mining claim under a contract by which they were to restore the same to plaintiffs at plaintiffs’ option; that plaintiffs had notified defendants to surrender possession, which they had refused to do; that the prayer of said original complaint was for the possession of the property; that without the consent of defendants the amended complaint for injunction was filed, thereby chatiging the form of action from ejectment to injunction, and that no summons was issued on the amended complaint.

There was a motion to strike out the foregoing part of the answer, on the ground that the same was irrelevant and redundant. The motion was sustained, and this is assigned as error.

Counsel contend that the matter referred to was not irrelevant, for the reason that the amended complaint wholly changed the cause of action, and was such an amendment as the court should not have allowed, and cite Ramirez v. Murray, 5 Cal. 222; Wilson v. Lassen, 5 Cal. 114; Hackett v. Bank of California, 57 Cal. 335. The cases cited seem to support the appellants’ position as to the right of the court to permit such an amendment as [97]was made here, but we are of the opinion that the question is not properly presented for our consideration. A defendant certainly cannot answer a complaint by an allegation that it has been improperly filed. The question attempted to be raised by answer should have been presented by an objection to the filing of the amendment, if opportunity was offered, or by a motion to strike the amended pleading from the files. (Ramirez v. Murray), supra.)