Harney v. Corcoran

McKee, J.: The action in this case was commenced against a number of defendants to foreclose a street assessment lien on a lot of land in the City and County of San Francisco. Some of the defendants appeared and answered; others were not served with process. Among those answering were the appellants. By their answers, they admitted ownership of the premises in dispute. Subsequently, however, they filed another. answer in which they denied ownership. But as that answer was filed without leave of the Court or consent of counsel, it was, on motion of the plaintiff’s attorney, stricken from the files. The defendants then moved to be allowed to re-file the answer as an amendment to their answer on file, and this motion was denied by the Court, except as to so much of it as set up the defense of payment. To this ruling the appellants excepted, and now assign it as error. The proposed answer was not an amendment to the answer on file. It raised an issue antagonistic to the issue made by the complaint and the defendants’ original answer. Whether a party shall be permitted to file an additional answer which changes the issue already made in the case, is a matter for the sound discretion of the trial Court. The refusal to allow the filing of such an answer under the circumstances in which the application was made, is not an abuse of discretion with which this Court will interfere. In Stuart v. Lander, 16 Cal. 372, we held that it was not error for a Court to refuse permission to set up the statute of limitations after answering to the merits. In Page v. Williams, 54 Cal. 562, it was held that the Court below properly exercised its discretion in refusing to allow a defendant to set up, by way of amendment, want of consideration of the promissory note in suit, after the case had been at issue upon the plea of payment. And in Spanagel v. Reay, 47 Cal. 608, it was held, that where a defendant admits in his answer a material allegation of the complaint, he should not be allowed to amend his answer by changing the admission into a denial, after the ease has been tried on the issues as framed and a new trial granted. Upon the case being called for trial upon the issues made [317] by the pleadings, appellants objected to proceeding with the trial of the case, until certain persons named in the complaint as parties defendants were served with process. In response to the objection, the plaintiff dismissed the action as to those persons, and by leave of the Court, amended the complaint by erasing their names from the title of the action contained in O the complaint. To this the appellants’ attorney excepted, and, at the same time, moved, upon his affidavit, for permission to answer the complaint as amended, by refiling the answer which had been stricken from the files. The motion was denied and the appellants excepted. Plaintiff had the right to dismiss the action against any parties who had not been served with process. There was no abuse of discretion in permitting it to be done, nor in allowing the names of such parties to be stricken from the title of the action, nor in refusing to allow the appellants to answer the complaint, as it was with those names erased. The body of the complaint was not changed in any respect. There was, therefore, nothing which required a new answer. The parties were ready for trial upon the issues which had been framed. Striking from the title of the action the names of one or more defendants did not change in any way those issues nor render necessary any additional answer. The amendment of the complaint was not such an' amendment as the law or rules of the Court required to be served upon the defendants, or which entitled them to answer. (Brock v. Martinovich, 55 Cal. 516.) Judgment and order affirmed. Ross, J., concurred in the judgment.