Savage v. Challiss

[324] By the Court, Safford, J. In this case there has, as yet, been no final trial and judgment, but it stands for hearing upon an order of reference, made by the court below upon motion of defendant, Challiss, and, as it is claimed, in pursuance of article 4, chapter 2, title 9, of the civil code. The plaintiff, here and below, objected to such reference, and now seeks to have this court vacate the order making it. We are of the opinion that this order, even if it were erroneous, is not a matter for review, at least until a final judgment has been reached in this case. It does not come within the definition of a final order, as laid down in section 524 of the code. It may be an order affecting a substantial right of the plaintiff, but it most certainly does not determine his action, or prevent a judgment. Nor is it an order made in a special proceeding, or upon a summary application after judgment. Neither is it an order involving the merits of the action, or any part thereof, as we understand the meaning of the phrase,, or as it is used in the laws of 1865, page 130. All that is intended to be accomplished by such an order, is the finding of the issues of fact alone, or those of fact and of law, of the case in which it is made, and a submission thereof to the court, in the form of a report, subject, however, to exception and review. Such report, then, stands as the verdict of a jury, if the reference is to report the facts; or as the decision of the court,, if tire reference is as to all the issues. And upon it judgment may be entered, if no good ground of objection appear. § 294, Code Civ. Proc. Thus the order of reference in this case did not [325] affect the merits, as between the parties, but only provided "for an examination and report upon the issues, by a referee, instead of a court and jury. The conduct of the trial is not changed. See § 294, before referred to. This order, then, being neither a final order nor one involving the merits of the action, nor any part thereof, we know of no provision of the code which authorizes us to review it, as in this proceeding it is sought to be done. This view also renders it unnecessary to notice several points made by counsel, as growing out of, or suggested by, the order of reference. It is also claimed that the court below erred in overruling a motion made by plaintiff to strike out a large portion of the defendants’ answer, upon the ground that such portion was irrelevant and redundant, and constituted no defense to plaintiff’s cause of action. Taking it for granted that the order refusing to strike out comes within the meaning of the provisions of the laws of 1865, p. 130, referred to, and that such an order may therefore be brought here for review, as the plaintiff has now done, we proceed to inquire whether it was, in fact, erroneous. It seems that the issues in this case were made up by the filing of the pleadings, as follows : Petition filed Aug. 29, 1866; answer of Charles K. Hamilton, one of the defendants, filed on the same day ; answer of Luther C. Challiss, the other defendant, filed on the 23d of December, 1866 ; reply of plaintiff filed on the 22d day of January, 1867. The case thus made was then continued from time to time, until the 11th day of November, 1867, whin the plaintiff made his motion to strike out, as follows, to wit: Plaintiff moves to strike from answer of defend [326] anfc Challiss’s defenses, numbered fifth to fifteenth inclusive, on the following grounds : 1. That the matter contained in said defenses is redundant and irrelevant. 2. That the matter contained in said defenses does not constitute a legal or equitable defense to plaintiff’s cause of action. The code, § 128, gives the court power to strike out of any pleading, redundant and irrelevant matters, but not of its own motion. If done at all, it must be at the instance of the party who might be prejudiced thereby; and such party should make his motion at the proper time, or he will be deemed to have waived his right so to do. For instance, if the matter objected to as irrelevant or redundant, be in the answer, as in this case, the plaintiff must be held to make his motion to strike out at the first opportunity. He cannot be permitted to file his reply, thus settling the issues in the case, so far as he is concerned, and afterwards, without withdrawing his reply, and for the first time, make his objection. If he were allowed so to do, much confusion, as well as great and unnecessary inconvenience to the defendant, might be the result, by putting it out of his power to know what portion of his plea would stand until the trial was actually entered upon; all of which might be avoided by the plaintiff’s prompt objection. It may be said that it is through the fault of the party in whose pleading the objectionable matter is to be found, if uncertainty as to the issues, or other inconveniences arise thereby, after parties have their case prepared, and just as they are going to trial. This is, perhaps, true, but furnishes no great reason or excuse for laches in the other party. [327] The second paragraph of the plaintiff’s motion is, as we think, unauthorized by the code, and even if true, affords no ground or reason for the result sought. However else an objection of this kind could betaken advantage of, it certainly cannot be by a motion to strike out. Entertaining these views, we do not feel authorized to disturb the ruling complained of. Bailey, J., concurring. Kingman, C. J., not sitting in this case.