Morrison, C. J.:
The plaintiff brought this action in the late District Court of Mono County to recover damages for injuries sustained by him through the alleged carelessness of an employee of the defendant. The case was set down for trial on the sixth day of April, 1880, and on that day the plaintiff appeared by his attorneys and the defendant by Frank Owens, one of its attorneys, and the parties proceeded to impanel a jury to try the case. The Court then adjourned until the following day. At the opening of the Court on the morning of the seventh day of April, the defendant, by its counsel, moved- the Court “ for leave to file an additional pleading,” averring and alleging “ that since the last trial of this cause there had been a full and final settlement of all matters embraced in this cause, and set forth in plaintiff’s amended complaint; and that a full release and satisfaction had been made and delivered by said plaintiff to this defendant. Counsel for the defendant also stated to the Court that he should have been in attendance on the Court on the previous day, but was unavoidably prevented by interruption in travel; that no one of the defendant’s counsel who had actually participated in the former trials of this cause was present, having been notified by the defendant that said cause was settled, and that they would not be required further; that Frank Owens, attorney for defendant, having been but slightly connected with the former trials, and knowing that John R. Kittrell and T. W. W. Davies, leading attorneys of the defendant, would be present on the morning of the seventh of April, had not felt it his duty to assume the responsibility of pleading said release, and that said Owens, attorney for defendant, was fully advised before the impaneling of the jury of said release; and the Court was not advised of any alleged settlement until now, the [248]*248second day of trial and after the impaneling of the jury; and that said release had been obtained, and all the negotiations concerning the same had been had, without any participation or knowledge of the same by any attorney of defendant. That after argument the Court overruled and denied defendant’s motion, said motion being objected to by plaintiff’s counsel, to which ruling of the Court the defendant, by its counsel, then and there duly excepted.”
On the following day after the plaintiff’s case was closed the defendant’s counsel renewed his motion for leave to file a supplemental answer, which motion was again denied by the Court. The supplemental answer was submitted to the Court, a copy thereof was served upon the plaintiff’s attorneys and profert was made of the release. In denying the defendant’s motion, the following reasons were given therefor by the Court: “Because it appears that the pretended settlement was made on the twenty-ninth day of March, 1880, and that the same was kept a profound secret from the Court and from plaintiff’s attorneys. That a jury was permitted to be impaneled before any such settlement was made known to the Court. That said pretended settlement does not come before the Court with that fairness and honesty that should characterize proceedings in courts of justice. This Court is of the opinion that such practice is reprehensible, and not to be tolerated. That the manner in which said pretended settlement was brought before the Court cannot be regarded in any other light than that of trifling with the Court. The plaintiff in the case having disappeared from, the country, the Court has no knowledge in what manner or by what means, whether just or unjust, said pretended settlement was brought about. The fact that said pretended settlement was kept a secret from the attorneys for both parties, at the time of the making thereof, and, from the knowledge of the Court, until after the impaneling of the jury, taints said settlement with grave suspicions of the fairness and integrity of said pretended settlement.” The defendant offered in evidence the release, and proof of the execution thereof, together with the proceedings of the Board of Trustees of the defendant, all of which papers were objected to and excluded by the Court. On this appeal, the action of the Court in refusing to allow the defendant to [249]*249file a supplemental answer, is assigned as error, and we are asked to reverse the judgment because there was an abuse of judicial discretion in the ruling of the Court below.
By Section 464 of the Code of Civil Procedure it is provided that “the plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case, occurring after the former complaint or answer.” In the case of Hoarding v. Minear, 54 Cal., 502, Department One of this Court held that “the right to file a supplemental answer is not an absolute and positive right, but is made to depend on the leave of the Court in the exercise of a legal discretion. And, say the Appellate Court of New York, the Court must grant leave unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave. * * The application may be refused, if the new defense, although legal, is inequitable.” (Medbury v. Swan, 46 N. Y.,200; Holyoke v. Adams, 59 Id. 233.)
In the case of Medbury v. Swan, supra, there was a delay of more than a year in the application to set up a discharge by supplemental answer, and the Court of Appeals held that such application was addressed to the discretion of the Court below. It was further held in that case, that no appeal would lie from the action of the Court on such a motion. But in the latter case of Holyoke v. Adams, 59 N. Y., 233? the language of the case in 46 N. Y. is explained, and it is there stated “that generally, a defendant has a right to set up by supplemental answer matter of defense which has occurred or come to his knowledge subsequently to the putting in of his first answer, but that he must apply to the Court by motion for leave so to do, so that the opposite party may be heard, and the Court may determine whether there has been inexcusable laches, or whether any of the reasons appear which are recognized as giving authority for denying the exercise of the general right in this particular instance. And the Court must grant leave unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave. It is claimed that Med-bury v. Swan, 46 N. Y., 200, is in conflict with this. There may be expressions there which, if separated from the con[250]*250text and from the facts of the case, are susceptible of such interpretation. It is said that ‘the right to allege new matter by supplemental pleading is not an absolute and positive right, but is made to depend upon the leave of the Court in the exercise of a legal discretion.’ This statement alone would be in conflict with what is now said. But the next sentence in that case explains and limits that which has just been quoted, to wit: ‘The application may be refused, if the new defense, although strictly legal, is inequitable, or if the application is not made with reasonable diligence. A party may waive his right altogether, or lose it by laches.’ What is meant in Medbury v. Swan—and,
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Morrison, C. J.:
The plaintiff brought this action in the late District Court of Mono County to recover damages for injuries sustained by him through the alleged carelessness of an employee of the defendant. The case was set down for trial on the sixth day of April, 1880, and on that day the plaintiff appeared by his attorneys and the defendant by Frank Owens, one of its attorneys, and the parties proceeded to impanel a jury to try the case. The Court then adjourned until the following day. At the opening of the Court on the morning of the seventh day of April, the defendant, by its counsel, moved- the Court “ for leave to file an additional pleading,” averring and alleging “ that since the last trial of this cause there had been a full and final settlement of all matters embraced in this cause, and set forth in plaintiff’s amended complaint; and that a full release and satisfaction had been made and delivered by said plaintiff to this defendant. Counsel for the defendant also stated to the Court that he should have been in attendance on the Court on the previous day, but was unavoidably prevented by interruption in travel; that no one of the defendant’s counsel who had actually participated in the former trials of this cause was present, having been notified by the defendant that said cause was settled, and that they would not be required further; that Frank Owens, attorney for defendant, having been but slightly connected with the former trials, and knowing that John R. Kittrell and T. W. W. Davies, leading attorneys of the defendant, would be present on the morning of the seventh of April, had not felt it his duty to assume the responsibility of pleading said release, and that said Owens, attorney for defendant, was fully advised before the impaneling of the jury of said release; and the Court was not advised of any alleged settlement until now, the [248]*248second day of trial and after the impaneling of the jury; and that said release had been obtained, and all the negotiations concerning the same had been had, without any participation or knowledge of the same by any attorney of defendant. That after argument the Court overruled and denied defendant’s motion, said motion being objected to by plaintiff’s counsel, to which ruling of the Court the defendant, by its counsel, then and there duly excepted.”
On the following day after the plaintiff’s case was closed the defendant’s counsel renewed his motion for leave to file a supplemental answer, which motion was again denied by the Court. The supplemental answer was submitted to the Court, a copy thereof was served upon the plaintiff’s attorneys and profert was made of the release. In denying the defendant’s motion, the following reasons were given therefor by the Court: “Because it appears that the pretended settlement was made on the twenty-ninth day of March, 1880, and that the same was kept a profound secret from the Court and from plaintiff’s attorneys. That a jury was permitted to be impaneled before any such settlement was made known to the Court. That said pretended settlement does not come before the Court with that fairness and honesty that should characterize proceedings in courts of justice. This Court is of the opinion that such practice is reprehensible, and not to be tolerated. That the manner in which said pretended settlement was brought before the Court cannot be regarded in any other light than that of trifling with the Court. The plaintiff in the case having disappeared from, the country, the Court has no knowledge in what manner or by what means, whether just or unjust, said pretended settlement was brought about. The fact that said pretended settlement was kept a secret from the attorneys for both parties, at the time of the making thereof, and, from the knowledge of the Court, until after the impaneling of the jury, taints said settlement with grave suspicions of the fairness and integrity of said pretended settlement.” The defendant offered in evidence the release, and proof of the execution thereof, together with the proceedings of the Board of Trustees of the defendant, all of which papers were objected to and excluded by the Court. On this appeal, the action of the Court in refusing to allow the defendant to [249]*249file a supplemental answer, is assigned as error, and we are asked to reverse the judgment because there was an abuse of judicial discretion in the ruling of the Court below.
By Section 464 of the Code of Civil Procedure it is provided that “the plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case, occurring after the former complaint or answer.” In the case of Hoarding v. Minear, 54 Cal., 502, Department One of this Court held that “the right to file a supplemental answer is not an absolute and positive right, but is made to depend on the leave of the Court in the exercise of a legal discretion. And, say the Appellate Court of New York, the Court must grant leave unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave. * * The application may be refused, if the new defense, although legal, is inequitable.” (Medbury v. Swan, 46 N. Y.,200; Holyoke v. Adams, 59 Id. 233.)
In the case of Medbury v. Swan, supra, there was a delay of more than a year in the application to set up a discharge by supplemental answer, and the Court of Appeals held that such application was addressed to the discretion of the Court below. It was further held in that case, that no appeal would lie from the action of the Court on such a motion. But in the latter case of Holyoke v. Adams, 59 N. Y., 233? the language of the case in 46 N. Y. is explained, and it is there stated “that generally, a defendant has a right to set up by supplemental answer matter of defense which has occurred or come to his knowledge subsequently to the putting in of his first answer, but that he must apply to the Court by motion for leave so to do, so that the opposite party may be heard, and the Court may determine whether there has been inexcusable laches, or whether any of the reasons appear which are recognized as giving authority for denying the exercise of the general right in this particular instance. And the Court must grant leave unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave. It is claimed that Med-bury v. Swan, 46 N. Y., 200, is in conflict with this. There may be expressions there which, if separated from the con[250]*250text and from the facts of the case, are susceptible of such interpretation. It is said that ‘the right to allege new matter by supplemental pleading is not an absolute and positive right, but is made to depend upon the leave of the Court in the exercise of a legal discretion.’ This statement alone would be in conflict with what is now said. But the next sentence in that case explains and limits that which has just been quoted, to wit: ‘The application may be refused, if the new defense, although strictly legal, is inequitable, or if the application is not made with reasonable diligence. A party may waive his right altogether, or lose it by laches.’ What is meant in Medbury v. Swan—and, I think, what is there expressed, when the case is taken altogether—is that there is no such absolute, unrestrainable right to plead by a supplemental answer matter newly arisen as that the Court may not control the exercise of the right within the limits which have been long established, by refusing leave thus to answer when long delay has intervened, or fraud is shown, or injustice will be wrought by allowing the new defense. That was a case presenting the question of laches. The motion there was denied below upon the ground that laches existed.”
In the case of Drought v. Curtiss & Park, 8 How. Pr. 56, the Supreme Court of Hew York held, “When the facts asked to be incorporated and pleaded in a supplemental answer, go to divest the plaintiff of the right to maintain the action, and transfer the cause of action to another, who has received satisfaction for the demand involved in it, it is the duty of the Court to grant the motion. The word may, in such a case, means must; and it will make no difference whether the motion be made at the earliest day or not. The facts amount to an entire satisfaction of the cause of action, and whenever pleaded and established, they utterly extinguish the plaintiff’s right to prosecute it.”
The above case is a very strong one, and it is not necessary for us to hold that the word may means must, as was held by the Supreme Court of Hew York. We have no decision in this State which covers the case now in hand; but under the section of the Code (473) relating to amendments of pleadings, it is provided that “ the Court may, in furtherance of justice, and on such terms as may be just allow a party to [251]*251amend any pleading,” etc. The case of Kirstein v. Madden, 38 Cal. 158, presented for review the action of the District Court in denying a motion for leave to amend an answer pending a motion for judgment on the pleadings, and it was there held that the Court below erred in denying leave to amend. The judgment was for that reason reversed. The above case illustrates the proposition that an abuse of legal (discretion, vested by the Code in the Court below, is a proper matter of review in this Court.
This brings us to a consideration of the facts presented in the case now before us. The trial of the case commenced on the sixth of April, and a jury was impaneled on that day. The defendant was represented by Mr. Owens, a junior counsel in the case, and Mr. Davies, the senior and leading counsel for defendant, was on his way from Carson City, his place of residence, to Bridgeport, the county seat of Mono County, to attend the trial and take charge of the defense. He started in time to reach Bridgeport before the trial commenced, but was prevented from reaching his destination until the following morning by reason of interruption in the travel. As it was, he traveled all night, and was present at the opening of the Court on the following day. At that time and before any evidence was taken in the case, Mr. Davies moved for leave to file a supplemental pleading, with a view to bring before the Court, and put in issue in the case, the release, which it was claimed, had been executed by the plaintiff to the defendant. The Court refused to allow the supplemental answer to be filed, and proceeded to the trial of the case, upon pleadings which did not allow such defense to be made. The release, it is said, was executed without the knowledge of the attorneys, but the bona fides of the transaction was not attacked; and there was no circumstance before the Court, save and except the fact that the attorneys were not consulted in the matter, to cast suspicion upon the settlement of the case, claimed to have been made by the parties thereto. We think there were no laches, and the Court should have permitted the defendant to plead the release. (See Grady v. Branded, 59 Cal. 105). The Court might have imposed terms upon the defendant, such as the payment of costs, and should have continued the case, if a [252]*252continuance had been asked for by the plaintiff. The plaintiff was not present at the trial, “but had disappeared from the country,” as the record shows, being satisfied with the amount of two thousand dollars, which it appeared had been paid him, and for which no allowance was made by the jury in fixing the damages awarded by their verdict.
The judgment and order are reversed.
Myrick, Sharpstein, and Thornton,.JJ., concurred.