Kirsch v. Smith

California Supreme Court

Kirsch v. Smith

27 P. 942, 64 Cal. 13, 11 P.C.L.J. 645, 1883 Cal. LEXIS 549

CourtCalifornia Supreme Court

DecidedJuly 20, 1883

StatusPublished

Cited by5 cases

This text of 27 P. 942 (Kirsch v. Smith) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirsch v. Smith, 27 P. 942, 64 Cal. 13, 11 P.C.L.J. 645, 1883 Cal. LEXIS 549 (Cal. 1883).

Pincite

Opinion

Per Curiam.

The questions raised by appellant’s counsel, with a single exception, were considered and decided adversely to his vieivs in Kirsch v. Brigard, 63 Cal. 319. The question which distinguishes this case from that arises out of the ruling of the court upon an application of the defendant to amend his answer. The application was made more than three years after the filing of the original answer, and within five days of the commencement of the trial. The application was denied and the ruling excepted to. The provision of the Code applicable to this subject is as follows: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading: or proceeding:.” (Code Civ. Proc. § 473.)

When the law gives to a lower court discretion ive will not reverse its order or ruling unless there appears to have been an abuse of discretion. The amendment which the defendant asked leave to file set up a judgment of a county court as a bar to this action. As this was an action of ejectment, and the county court had no jurisdiction of an action of ejectment, nor of any other action in which its judgment would be a bar to an action of ejectment, we do not think there was an abuse of discretion in denying the motion to file the amendment.

Judgment affirmed.

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Per Curiam.

The questions raised by appellant’s counsel, with a single exception, were considered and decided adversely to his vieivs in Kirsch v. Brigard, 63 Cal. 319. The question which distinguishes this case from that arises out of the ruling of the court upon an application of the defendant to amend his answer. The application was made more than three years after the filing of the original answer, and within five days of the commencement of the trial. The application was denied and the ruling excepted to. The provision of the Code applicable to this subject is as follows: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading: or proceeding:.” (Code Civ. Proc. § 473.)

When the law gives to a lower court discretion ive will not reverse its order or ruling unless there appears to have been an abuse of discretion. The amendment which the defendant asked leave to file set up a judgment of a county court as a bar to this action. As this was an action of ejectment, and the county court had no jurisdiction of an action of ejectment, nor of any other action in which its judgment would be a bar to an action of ejectment, we do not think there was an abuse of discretion in denying the motion to file the amendment.

Judgment affirmed.

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Bluebook (online)

27 P. 942, 64 Cal. 13, 11 P.C.L.J. 645, 1883 Cal. LEXIS 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirsch-v-smith-cal-1883.

Opinion

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