Opinion
Appeal from a judgment of the Superior Court of San Luis Obispo County. B. T. Williams, Judge.
COUNSEL:
The plaintiffs had the statutory right to at least ten days after the filing of the answer of McLean before they could be forced into the trial of the action, and the court below abused its discretion in forcing the case to trial before the expiration of that time. (Code Civ. Proc., sec. 443.) The superior court of San Luis Obispo county had no jurisdiction to try the action, because an order had been made transferring the cause to the county of Santa Barbara for trial, for disqualification of the judge. (Code Civ. Proc., secs. 170, 398; Krumdick v. Crump , 98 Cal. 119.)
The statute for a transfer of cause must be strictly followed. (Swepson v. Call , 13 Fla. 337.) The court had no jurisdiction to make the original order of transfer without notice to C. P. Robinson; and it had jurisdiction to vacate its order. (Baker v. Fireman's Fund Ins. Co ., 73 Cal. 182; Wiggin v. Superior Court , 68 Cal. 398; Hall v. Polack , 42 Cal. 218.) The statute assumes that the parties have a right to agree upon some court to try the case. (Code Civ. Proc., sec. 398.) The transfer not having been completed, the court retained jurisdiction over the cause. (Swepson v. Call , 13 Fla. 337; Servatius v. Pickel , 30 Wis. 507; People v. Zane , 105 Ill. 662; Atlantic etc. Coal Co. v. Maryland Coal Co ., 64 Md. 302; Estep v. Armstrong , 69 Cal. 536; State v. Butler, 38 Tex. 560.) Plaintiffs waived objection by their conduct to the order vacating the transfer. (Lake Erie etc. Ry. Co. v. Lowder , 7 Ind.App. 537; Hazard v. Wason , 152 Mass. 268; Solomon v. Norton (Ariz., Jan. 1886), 11 P. Rep. 108; Skelley v. Jefferson Branch State Bank, 9 Ohio St. 606.) There was no error in refusing the continuance or in refusing time to demur, there being no abuse of discretion.
Pierson & Mitchell, and D. H. Whittemore, for Appellants.
T. M. Osmont, D. M. Delmas, and W. F. Herrin, for Respondent George D. McLean.
Edward P. Cole, for Respondents.
A continuance is matter of discretion with the trial court. (Musgrove v. Perkins , 9 Cal. 211; Kneebone v. Kneebone , 83 Cal. 647; Barnes v. Barnes , 95 Cal. 177; Pilot Rock Creek Co. v. Chapman , 11 Cal. 161.) The right to answer or demur in ten days does not apply to amendments made at the trial. (Code Civ. Proc., secs. 656, 657; Brison v. Brison , 90 Cal. 327; Spanagel v. Dellinger , 38 Cal. 284; Harper v. Hildreth , 99 Cal. 270.) As appellants consented to the jurisdiction of Judge Williams, and as they tried part of the case before him without objection, they are estopped from denying it as to the remainder. (Upton v. Upton , 94 Cal. 26; Livermore v. Brundage , 64 Cal. 299; Paige v. Carroll , 61 Cal. 215; People v. Fowler , 88 Cal. 137.)
JUDGES: In Bank. Harrison, J. Garoutte, J., McFarland, J., Van Fleet, J., and Henshaw, J., concurred.
OPINION
HARRISON, Judge
[42 P. 558] When this action was called for trial in the superior court the plaintiffs moved for a continuance, and its denial is assigned by them as one of the errors of law committed at the trial. In connection with their motion for a continuance, the plaintiffs filed affidavits setting forth the history of the case, and stating that it would be required to file an amended complaint; and that until such amended complaint was filed and issue joined thereon, and a reasonable time allowed for the purpose of procuring the necessary evidence, the cause could not be tried. The cause had been tried twice before, and the judgments rendered in favor of the plaintiffs reversed by this court. The complaint upon which the last trial had been had was filed July 30, 1889, and the answer of the defendant McLean was filed August 3, 1889. Robinson made no answer, and his default had been entered. The cause was tried upon these issues, and judgment rendered in favor of the plaintiffs, April 30, 1890. From this judgment McLean appealed, and the judgment against him was reversed February 9, 1892, and the cause remanded for a new trial. (Schultz v. McLean , 93 Cal. 329.) Robinson took a separate appeal from the judgment, and October 4, 1892, upon the stipulation of the plaintiffs, confessing error, the judgment against him was reversed, and the remittitur filed in the court below, October 9, 1892. In reply to this motion of the plaintiffs, it was shown on the part of the defendants that in August the cause had been set for trial on the 12th of September, and that prior to that date, at the request of counsel for the plaintiffs, the defendants' counsel had consented to a continuance of the trial to some time in October, and that on the 3d of September a stipulation was made by the attorneys for the respective parties, consenting that the cause might be set for trial "at any time between the fifth and the fifteenth days of October, 1892, that may suit the convenience of the judge called to try the same," and that, pursuant to this stipulation, the cause was by order of the court set for trial on the eleventh day of October. The court thereupon denied the motion.
The plaintiffs did not claim that they were unable to proceed to trial upon the issues as they then stood upon the record, or that they were unable to present all the evidence necessary to establish the averments of their complaint, nor did they designate to the court any particulars in which they desired to amend their complaint, or that they desired to present any different issues from those upon which the cause had been previously tried, and, in view of the fact that before they went to trial they filed an amended complaint, it must be held that so far as the motion was made upon this ground, it was removed by the filing of such complaint. At the time the motion was made the court was not informed of the nature of the amendments that the plaintiffs desired to make to the complaint, or that they were unable to establish the averments that they might include in such amended complaint; and, in the absence of some showing of this nature, and, in view of the fact that the cause had been twice tried, the court was justified, at least until they had asked leave to amend their complaint, and pointed out the particulars in which they desired to amend it, in assuming that they were prepared to establish their cause of action.
2. After the denial of this motion, the plaintiffs asked leave to file an amended complaint and that a reasonable time might be granted them therefor. The court gave them the leave, but directed that it should be filed within twenty-four hours. The plaintiffs insisted that this was too short a time, and excepted to the order upon the ground that the time allowed therefor was insufficient.
We cannot perceive any error in this action of the court. It is not claimed on behalf of the appellants that the amended complaint which they filed does not contain all the averments which they desired to incorporate therein, or that by reason of the brief time which was given for its preparation it does not properly present their cause of action. In view of the previous trials of the cause, and the rulings of this court upon the previous appeals, the court was justified in assuming that the facts, as well as the mode of presenting them, were familiar to the plaintiffs. The reversal of the judgment against Robinson was [42 P. 559] upon their own confession of error, and was granted by the court at their request, and not by reason of any consideration of the court itself; and the plaintiffs did not by such reversal first learn of the necessity for an amendment to their complaint. Their stipulation, after becoming aware of the error upon which they consented to a reversal of the judgment, that the cause might be set down for trial for some time between the fifth and fifteenth days of October, shows that they must have known at that time the particulars, if any, in which they desired to amend their complaint.
3. Upon the filing of the amended complaint, Robinson demurred thereto, and after argument thereon the demurrer was overruled, and Robinson declining to answer, his default was entered.
McLean filed his answer the next day after the amended complaint was filed, and the court thereupon ordered the parties to proceed to trial. The plaintiffs objected thereto upon the grounds that they were entitled to a reasonable time after issue joined, within which to prepare the cause for trial, and that they had not had sufficient time within which to examine the issues involved in the action; and that they also had the statutory right to at least ten days after service of McLean's answer within which to demur thereto, and to raise an issue of law thereon before being compelled to try the issues of fact. Their objection was overruled, and they excepted thereto.
The answer of McLean consists chiefly of denials of the averments in the amended complaint, and of a plea of the statute of limitations, and an averment of good faith in making the purchase of the lands involved in the action. The plaintiffs did not claim that witnesses by whom to establish the facts alleged by them were not at hand, or that any evidence was wanting with which to rebut the affirmative matters shown by the answer; and inasmuch as the cause had been set for trial on the 11th of October, with their consent, and with the presumption that they knew the points in which they intended to amend their complaint, it would have shown a want of diligence on their part not to have had the witnesses present with which to proceed to trial. Upon their motion for a new trial they did not present any affidavits showing that they had any other evidence, or that any facts could be presented by them in addition to those which they did present at the trial which then took place.
Their claim of the right to time within which to demur to the answer is untenable. They did not then suggest any ground of demurrer, nor did they afterward upon the motion for a new trial, nor have they upon this appeal specified any grounds upon which they could have demurred to the answer, or that there was any issue of law which they desired to have determined before the issues of fact were tried. Unless it is made to appear that an answer is subject to demurrer and that the plaintiff could have derived some advantage by demurring to it, he cannot claim to have been deprived of any right because he is not granted time to determine whether he will demur. The provisions of section 443 of the Code of Civil Procedure are applicable to the original pleadings in a cause, and not to pleadings which are amended at the trial or during its progress. The court has the same right to exercise its discretion in determining the time within which an answer or demurrer shall be filed to the amended pleading which it allows, as it has in determining whether it will allow such amended pleading, and, unless it shall appear that it has abused this discretion, its action will not be reviewed.
4. After this motion for a continuance had been denied, the plaintiffs then objected to further proceeding with the cause, upon the ground that the superior court of that county had no jurisdiction to try the same, by reason of an order having been made transferring the cause to the county of Santa Barbara for trial. It appeared that on the 4th of June, 1892, an order was made, upon the application of McLean, for a transfer of the cause to the county of Santa Barbara, upon the ground that the judge of the county of San Luis Obispo was disqualified by reason of having been counsel for McLean. When this order of transfer was made the cause had been removed from the superior court of that county, and was pending in the supreme court upon the appeal of Robinson from the judgment therein, and no notice of the motion had been given to Robinson, and upon these matters being brought to the attention of the court, it made an order on the 18th of June vacating its previous order of transfer. The papers in the cause had not been transferred to Santa Barbara county, but remained with the county clerk of the county of San Luis Obispo. Whether the plaintiffs would have had the right, upon a proper motion therefor, to have the cause transferred to another county for trial need not be decided. After having stipulated on September 3d that the cause might be set for trial at any time "that may suit the convenience of the judge called to try the same," and in pursuance thereof, Judge Williams having been called to preside in that court, and the plaintiffs having appeared before him, without objection to his trying the cause, and obtained leave to file an amended complaint, and argued the demurrer thereto, they must be deemed to have waived any right to move for a transfer by reason of the disqualification of Judge Gregg.
5. Whether the court would submit special issues to a jury was a matter within its own discretion. (Code Civ. Proc., sec. 592.)
6. In their notice of intention to move for a new trial, the plaintiffs stated, as one of their grounds of said motion, the insufficiency of evidence to support the findings, but [42 P. 560] they have not incorporated into the bill of exceptions any of the evidence that was given at the trial or specified any particular in which it was insufficient. It is stated in the bill of exceptions that at the trial they produced before the court their evidence tending to prove the allegations of their amended complaint, and also evidence in rebuttal of that introduced by the defendant. It must, therefore, be assumed that the evidence fully sustained the findings of the court.
The judgment and order are affirmed.