We do not understand the facts to be exactly as stated in the foregoing opinion. We adhere to the views expressed when the case was before Department One, and therefore dissent from the judgment now given.
The following is the opinion of Department One referred to:
The Court:Upon the case as presented in the transcript we can not say that the evidence was insufficient to show negligence on the part of the employee of defendant in the transaction of the business of his agency. Nor can we declare that there was not evidence to sustain the finding that plaintiff was not guilty of contributory negligence.
It is urged by respondent that the action of the Court below in refusing to allow the supplemental answer was either correct or it was more than error—was an abuse of discretion, and that an abuse of discretion can only be presented by affidavit. (C. C. P. 657, sub. 1.) But by Section 647 of the Code of Civil Procedure, an order refusing to allow an amendment to a pleading is “deemed to have been excepted to.” *253The ruling of Court deemed to have been excepted to, can be incorporated in a bill of exceptions.
The circumstances under which defendant applied to file an amended or supplemental answer, in the nature of a plea puis darrein continuance, were such as justified the Court in denying it. Section 473 of the Code of Civil Procedure, after authorizing an amendment by adding or striking out the name of a party, provides: “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 in other particulars.” It would seem that whether a party should be allowed to plead a matter arising puis darrein continuance was always a matter of discretion. (Harding v. Minear, 54 Cal. 502, and cases cited.) The refusal to permit the amended or supplemental answer was not, upon the facts as they appear in the transcript, an abuse of discretion.
An application for leave to file a supplemental answer, setting forth facts which have occurred since the last continuance, will ordinarily, if made promptly, be allowed almost of course. But the application should be made promptly and as soon as its necessity is ascertained. (2 Wait’s Pr. 470.) Here the facts were known to one of defendant’s attorneys before the action was called for trial. The application was not made, however, until the day after the jury was impaneled, and after counsel for plaintiff had opened his case to the jury.
In this State an attorney has, perhaps, no lien for his costs. But may not the Court—in deciding, in its discretion, whether a party shall be allowed, pending the trial, to plead a release, executed on a settlement of the cause of action which was made prior to the trial—consider the circumstances that the settlement was made behind the back of the attorney of one of the parties; perhaps in fraud of his rights, certainly when the party was deprived of the supervision and protecting care of his chosen legal adviser? Such settlements ought not to be encouraged, and if they are to be enforced at all, should be enforced only through the medium of a plea proffered at the earliest practicable moment.
Judgment and order affirmed.