Banta v. Siller

Citations

• 121 Cal. 414
• 53 P. 935
• 1898 Cal. LEXIS 923

Syllabus

<p>Motion fob New Trial — Refusal to Settle Statement — Relief from Order—Discretion.—When the proposed statement on motion for a new trial and the amendments thereto were properly noticed for settlement, but were not presented to the judge for settlement, nor left with the clerk for the judge, within the time prescribed by the code, and the judge for that reason had refused to settle the statement, the court has power, and has an enlarged discretion to relieve the moving party from such order, on the ground of inadvertence, surprise, or excusable neglect, and to settle the statement. The court should resolve any doubt in favor of the application, so that the full merits of the litigation may be presented; and its order granting the relief will not be disturbed on appeal, unless it clearly appears that the court or judge was guilty of a gross abuse of discretion.</p> <p>Pleading—Inconsistent Defenses—Verified Answer.—A defendant may plead as many defenses as he may have, though they may be inconsistent with each other; and the fact that the answer is verified does not preclude the presentation therein of distinct inconsistent defenses. It is error to rule that a sworn answer must not deny in one defense a fact which is averred to be true in another defense, and to try the case upon that theory.</p> <p>Id.—Construction of Inconsistent Averments.—It is only as applied to repugnant averments in a single or separate defense in a verified answer, that the averment which bears most strongly against the party pleading it, is to be taken as true; and that rule cannot be applied to repugnancy between inconsistent defenses.</p>