Bernheim Distilling Co. v. Elmore

California Court of Appeal

Bernheim Distilling Co. v. Elmore

106 P. 720, 12 Cal. App. 85, 1909 Cal. App. LEXIS 46

CourtCalifornia Court of Appeal

DecidedDecember 1, 1909

DocketCiv. No. 658.

StatusPublished

Cited by7 cases

This text of 106 P. 720 (Bernheim Distilling Co. v. Elmore) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bernheim Distilling Co. v. Elmore, 106 P. 720, 12 Cal. App. 85, 1909 Cal. App. LEXIS 46 (Cal. Ct. App. 1909).

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Opinion

*86 COOPER, P. J.

The only question attempted to be raised in this ease is that plaintiff was a foreign corporation, and that prior to the commencement of the action it had not filed in the office of the Secretary of State a certified copy of its articles of incorporation and also a designation of some person residing within the state upon whom process might be served, as required by the provisions of the Civil Code.

The failure to allege this compliance with the requirements of the code was not a failure to allege a cause of action, and therefore was not a ground of demurrer. (South Yuba Water Co. v. Rosa, 80 Cal. 333, [22 Pac. 222].)

Defendant in its answer did not plead such failure upon the part of plaintiff, and thus waived it. (Code Civ. Proc., sec. 434; Cal. Sav. <& Loan Society v. Harris, 111 Cal. 133, [43 Pac. 525].)

Nor did’ the court err in refusing leave to defendant to amend its answer by pleading such matter in abatement during the progress of the trial. Pleas in abatement are dilatory pleas, are strictly construed, and have never been favored. The amendment sought did not go to the merits. The trial had been nearly concluded, and the trial court properly exercised its discretion in denying the amendment sought, as it was not in furtherance of justice, but for the purposes either of defeating justice or delaying the action.

The judgment and order are affirmed.

Hall, J., and Kerrigan, J., concurred.

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*86 COOPER, P. J.

The only question attempted to be raised in this ease is that plaintiff was a foreign corporation, and that prior to the commencement of the action it had not filed in the office of the Secretary of State a certified copy of its articles of incorporation and also a designation of some person residing within the state upon whom process might be served, as required by the provisions of the Civil Code.

The failure to allege this compliance with the requirements of the code was not a failure to allege a cause of action, and therefore was not a ground of demurrer. (South Yuba Water Co. v. Rosa, 80 Cal. 333, [22 Pac. 222].)

Defendant in its answer did not plead such failure upon the part of plaintiff, and thus waived it. (Code Civ. Proc., sec. 434; Cal. Sav. <& Loan Society v. Harris, 111 Cal. 133, [43 Pac. 525].)

Nor did’ the court err in refusing leave to defendant to amend its answer by pleading such matter in abatement during the progress of the trial. Pleas in abatement are dilatory pleas, are strictly construed, and have never been favored. The amendment sought did not go to the merits. The trial had been nearly concluded, and the trial court properly exercised its discretion in denying the amendment sought, as it was not in furtherance of justice, but for the purposes either of defeating justice or delaying the action.

The judgment and order are affirmed.

Hall, J., and Kerrigan, J., concurred.

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106 P. 720, 12 Cal. App. 85, 1909 Cal. App. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernheim-distilling-co-v-elmore-calctapp-1909.

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