Collins v. Bicknell

182 P. 763, 41 Cal. App. 291, 1919 Cal. App. LEXIS 397

• Court: California Court of Appeal
• Decided: May 27, 1919
• Docket: Civ. No. 1870.
• Status: Published

Opinion

SHAW, J.

This is an appeal from a judgment entered upon an order of court granting plaintiff’s motion to strike from the records an answer and cross-complaint filed by de fendant after the time within which to file the same had expired.

The action was to recover upon a promissory note, copy of which was set forth in the complaint. A demurrer to a former pleading had been sustained and defendant granted ten days within which to file an amended answer and cross-complaint. The pleading stricken out was not only frivolous, sham, and wholly without merit, but was not filed until after the expiration of the time granted for the filing thereof. That a court in a proper case may, in the exercise of its discretion, strike out an answer so filed admits of no question. (Bowers v. Dickerson, 18 Cal. 420; Acock v. Halsey, 90 Cal. 216, [27 Pac. 193]; Lunnun v. Morris, 7 Cal. App. 710, [95 Pac. 907].) In the absence of a showing of abuse of such power, no cause exists for complaint by reason of the making of such order. In the instant case, as stated, the answer was wholly without merit and alleged no facts constituting any defense to the cause of action stated in the complaint; nor were any facts alleged in the cross-complaint upon which any affirmative relief could be granted defendant. Indeed, waiving, all objection as to the pleading not being filed within time, plaintiff, upon demand therefor, would have been entitled to judgment on the pleadings.

The judgment is affirmed. . ;

Conrey, P. J., and James, J., concurred.