Tulare Building & Loan Ass'n v. Coleman

VANCLIEF, C. Action to foreclose a mortgage executed by the defendant Henry E. Coleman, to secure his promissory note for the sum of $2,000, and interest at eight per cent per flTirmm, payable to the plaintiff (a corporation) eight years after date, but provided that, if default be made in the payment of any part of said interest as it became due and payable, then the principal and interest should immediately become due at the option of the holder, and that such option might be exercised without notice. The complaint was duly [335]verified. On March 18, 1895, the defendants appeared, and filed a general demurrer to the complaint. The demurrer was overruled on April 12, 1895, and defendants were allowed fifteen days to answer. On April 27, 1895, the court, on motion of defendants, granted five days’ additional time in which to answer. On May 2, 1895, the defendants served and filed an unverified answer. Thereafter, on due notice, plaintiff’s attorneys moved the court to strike out the answer, on the ground that it was not verified. Thereupon defendants' attorneys consented to the striking out of the answer, and at the same time produced and asked leave to file what they denominated an ‘ ‘ amended answer, ’ ’ which purported to have been verified by the defendant Witkowski, on April 3, 1895, twenty-four days prior to the filing of the unverified answer. The so-called “amended answer” was an exact copy of the unverified answer which had been filed, except that the word “amended” was added thereto. The court ordered the unverified answer to be struck out, but denied leave to file the proffered amended answer, on the ground of inexcusable negligence on the part of defendants, there being no showing nor pretense of any excuse for not having filed the verified answer, instead of the other, in the first instance. After hearing evidence for plaintiff, the court gave judgment in its favor, from which the defendants bring this appeal on a bill of exceptions, and contend that the court erred in denying their motion for leave to file the so-called “amended answer.”

For the following reasons, I think the court did not exceed a proper exercise of its discretionary power in denying the motion:

1. By what the court was justified in regarding as mere dilatory tactics, the defendants had secured a delay of a month and a half.

2. The proffered amended answer appears to have been verified in San Francisco on April 3, 1895, and there is no pretense that it might not have been filed long before the unverified answer was filed; and that it was not so filed, instead of the latter, is evidence of a degree of negligence indicating bad faith.