Friedlander v. Sumner Gold & Silver Mining Co.

Citations

• 61 Cal. 116
• 1882 Cal. LEXIS 553

Syllabus

<p>Contempt of Court.—The employment of language by counsel in this court manifestly disrespectful towards a Judge of the Superior Court, constitutes contempt of this Court.</p> <p>Trial—Cross-Complaint—Continuance.—In an action to foreclose a mortgage the defendant, in his answer, pleaded certain matters by way of cross-complaint, and before the cross-complaint was answered or demurred to, or the time for answering or demurring had expired, the cause was called for trial, a motion for continuance by defendant denied, a trial had, and judgment rendered for the plaintiff.</p> <p>Held: The action was not in a condition to be tried. It is not necessary to decide whether the insufficiency of a pleading can in any case be considered upon a motion for a postponement of the trial; it is enough to say that this ought not to be done, unless the pleading totally fails to set forth the cause of, action or defense. In this case, as the cross-complaint was not so totally defective as that ic could have been stricken out on motion, or as that it was subject to a general demurrer; and as it was neither answered nor stricken out, nor demurred to, generally or specifically, but remained one of the pleadings on which the case was to be tried, the Court below was not authorized to disregard its allegations, nor to proceed to a trial of the action before the issues were fully made up.</p>