The herald., 1896-09-13
A CASE REMANDED
But the Supreme Court Speaks caustieally Of
Defendent Counsel

O0t t06 supreme (OuTt Spc0kb (1GBtlS1Ity OF
Defendent Counsel
A supreme court decision in the case
of George A. Ralphs, plaintiff and re-
spondent, VS.. L. E. Hensler ct al, de-
PENDANTS and appellants. appealed for
the second time from the superior court
of this county, was handed down yes
terday.
1t was an appeal from the judgment
and from the order denying a new trial.
The second trial of the action was
entered upon by the respective parties
under the same pleadings which were
considered upon the first appeal. The
plaintiff, after making his formal proof,
introduced the power of attorney and
exhibited to the court defendants an
swer. That answer was their subsisting
operative pleading, and contained the
averments and admissions, which, in
the opinion of this court, as declared in
volume 81 of our reports. amounted to a
ratification by Defendant Hensler of the
acts of her attorney performed under
the insufficient power given to him.
At the conclusion of the taking of
plaintiffs evidence, defendant moved
for nonsuit, and among the grounds
urged was the one that the amended
complaint upon which the action was
being tried failed to state a cause of ac-
tion. The particular in which the
amended complaint was insufficient will
be found designated and discussed in
the concurring opinion of Mr.. Justice
de Haven, rendered upon the former ap-
peal. The trial court held properly that
the complaint was radically defective,
but granted plaintiffs attorney leave to
amend. The amendment which plain
tiff'S attorney thus made was a very
simple though important one. 1t con-
sisted in embodying in his amended
omplaint true copy of the mortgage.
DEFENDANTS attorney made no objection
TO the allownce of this amendment mere
ly insisting that in case it was made he
should be allowed to file an amended
answer. He obtained this general
leave to file an amended answer with
out disclosing the form which his amend
ment would take, and, indeed, by prac-
tlcing what amounts to a concealment
upon the court. of the nature of it. AS
PLAINTIFFS attorney pointed out to the
court In the discussion which was had
upon the matter, there was nothing IN
the amendment which he proposed to
make upon behalf of the plaintiff, by
attaching to the complaint copy of the
nortgage, which called for or necessi-
tated any mendment to the answer. and
ne asked of defendants attorney:
What is there to answer to?" The
only enlightenment which court or conn
sci was given upon the matter is found
IA the evasive answer: There is some
Inlng: What that something was In
Que time appeared. The case was con-
tinued to allow the filing of the amend
ed pleadings. e
Inc amended answer Of defendant.
nied IN pursuance of the. leave of court
mus obtained. consisted of an answer
Which omitted all of the averments
Mhlch the defendant had heretofore
ss ssoishlnIy made, and which this court
hau M nelo TO amount to ratification.
Inc court took further evidence. none
OF IT, however. bearing upon the uues-
ton OF ratification, and rendered. its
judgment in favor of plaintiff. .n-
Inc principal contention upon this an
peal is that at the time when the iudg
ment was rendered there was no ey;-
uence before the court of a ratification:
that the pleading in which acts consti-
tuting ratification had been set IN hv
defendant, and which pleading amount
ed to a binding admission against her,
was no longer subsisting and operative:
tnat II had been superseded for all pur-
poses by the amended answer which was
De1ore the court when the cause was de-
termined; that the record disclosed that
the pleading containing the admissions
was never introduced in evidence; that
1t was merely exhibited to the court and
that, If introduced in evidence when the
pieadings We're changed and the admis-
sion Withdrawn it ceased to be evidence
IN the case and could not, therefore,
have been properly considered by the
judge.
This contention of appellant must be
sustained. 1t was early held in the case
or Mecham VS.. Mckay, Cal, 1884, that
an original pleading containing an adj
mission against interest, which original
pleading has been superseded by an
amended pleading, may not be admitted
IN evidence against the pleader, and it
is said: IF the party amends his plead
ing stating the facts differently. he
would reap no benefit from his amend
ment. If the adverse party were at lib
erty to use the first pleading as an ad-
mission to overthrow the amended
pleading" This case has frequently
been followed. (Ponce VS.. McElvy, 81
Cal, 222; Pfister VS.. Wade, SO Cal, 1873;
Wheeler VS.. West 1 Cal, 1869 Under
the rule as thus laid down, defendants
answer containing the admissions
amounting to ratification. was super
seded and ceased to be a subsisting
pleading. Its declarations could not
have been received or considered by the
court. But in the absence Of those dec
laratons there is no other evidence in
the case tending to show ratification,
nor is it even contended by respondents
attorney that the power Of attorney ex-
ecuted by Mrs. Hensler to Mccarthy
contains sufficient authority for the ex-
ecution in Mrs. Hensler's name of the
note and mortgage in suit.
1t follows that the judgment and order
must be reversed and the cause remand
ed. and it is ordered accordingly.
The opinion is written by Justice Hen
shaw, Justices Temple and Mcfarland
concurring.