Abbott v. Douglass

28 Cal. 295

• Court: California Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinions

By the Court,

Shafter, J.

This is an action for false imprisonment. The defendant in his answer denies the allegations of the complaint seriatim, and states a special defense by way of justification. Both the complaint and the answer aim verified. The defendant was defaulted, and thereupon judgment was rendered against him for three thousand dollars—the full amount claimed in the complaint.

There is a diversity of interlocutory orders and other entries in the transcript, showing in detail the movement of the cause in the Court below, and on which the appellant relies, in the main, to make out that the judgment is erroneous. But inasmuch as these entries are not embodied in a statement, they were, for that reason, improperly inserted in the transcript, and the respondent therefore very properly insists that the question of error is to be treated on the judgment roll alone. (Magee v. The Mokelumne Hill Company, 5 Cal. 258 ; Hutton v. Reed, 25 Cal. 478.)

The judgment is as follows: “In this case witnesses were sworn and examined for plaintiff and defendants. The Court, after due consideration, and being fully advised in the premises, ordered that the answer of C. D. Douglass, one of the defendants herein, be, and the same is hereby, stricken out; and that thereupon the default of said Douglass be entered ; and the plaintiff, H. J. Abbott, have judgment against said defendant C. D. Douglass for the sum of three thousand dollars and his costs of suit as prayed for in the complaint.”

The judgment then was upon default; and it appears by the recitals that the case was prepared for an entry of a default by an order striking out the answer, actually filed. (Drum v. Whitney, 9 Cal. 422.) The question, then, comes upon the validity of that intermediate order. (Practice Act, Sec. 344.)

The grounds of the order are not disclosed in the judgment roll, nor do they appear anywhere in the miscellaneous matter contained in the transcript. But it appears from the recitals in the judgment: First, that witnesses were sworn and examined in the case for both parties, and that the Court after due consideration ordered the. answer to be struck out. From the fact that witnesses were so sworn and examined, it is to be presumed that the case was being tried upon the merits; for under no possible state of facts would it be proper for a Court to permit witnesses to be sworn and examined in connection with a motion to strike out a pleading. Furthermore, the intendment that the question was raised on the trial of the action is fortified by the direct statement in the judgment that “ witnesses were sworn and examined in the case.” Now, upon what ground, if any, could the order have properly been made during the progress of the trial ? If there be any, lying within the scope of legal conjecture, the order must be considered as having been properly made. It could not have been so made on the ground that the answer was not filed within the time limited by law, for if such was the fact, the plaintiff waived the objection by going to trial upon the merits. And, for the same reason, it could not have been properly made on the ground that the answer was not duly verified. And, furthermore, the verification appears to us to be free from objection. Neither can the order be vindicated on the ground that the answer was a “ sham,” or that it was frivolous, irrelevant, redundant or immaterial. The traverse which it contained of all the plaintiff’s allegations is conclusive upon that question, find relieves us from the necessity of looking into the special defense. The grounds upon which an answer may be struck out are mainly defined in section fifty of the Practice Act, and we have already more than exhausted them. It may be added, that if the Court in the course of the trial became satisfied that the order was fallacious as matter of law, or found, on the testimony adduced, that the allegations of the complaint were true and that the justification stated in the answer was false, the proper sequence, in either event, was not an order striking out the answer, but a judgment in chief for the plaintiff based upon a finding in his favor.

It is suggested for the respondent that the answer may have been stricken out on the ground that the plaintiff neglected to appear and testify in disobedience to a subpoena served upon' him; or, that being called upon, he refused to be sworn ; or, that being sworn, he refused to answer; or on the ground that being required to subscribe an affidavit or deposition, he refused to do so. (Practice Act, Sec. 409.) The answer is obvious. The statement in the judgment that “witnesses were sworn and examined in the case for both parties,” and that “ the Court, after due consideration and being fully advised in the premises, ordered,” etc., excludes the idea that the order striking out the defendant’s answer was made on the score of any personal neglect or any personal contumacy on his part. It appears by the record that the order was upon “ consideration,” and that the consideration was limited to the testimony adduced.

In discussing the question presented, we have referred familiarly to the answer. The answer, notwithstanding the order striking it out, is entitled to its position in the judgment roll. The phrase “ struck out,” as applied to a pleading, is figurative only. An order sustaining a demurrer to a pleading defeats or suspends for the time being its legal effect in the action, and a successful motion to strike out an answer does no more. In either event the pleading, as a document, remains in official custody, and, among others, for the purpose of ulterior proceedings in the Court that made the order, or for the purpose of handy review in the Court of errors. Further, the Practice Act requires peremptorily that whenever an answer has been put in that it shall constitute a part of the judgment roll, no matter how the Court may deal with it on demurrer or on motion to strike out, or find, on trial, as to the truth of its averments.

The conclusion is that the judgment is erroneous; and for the reason that the order striking out the answer of the appellant cannot be right by any known legal possibility.

Judgment reversed and new trial ordered.