Gibson

— This is an application for a writ of review. The petition shows that an action was commenced by the petitioner in the superior court of the city and county of San Francisco against the Sterling Furniture Company, for damages in the sum of twenty-five thousand dollars, on the 29th of August, 1889, and on the same day summons was served upon the defendant therein; that on August 31, 1889, the defendant therein served upon the plaintiff a notice that on the sixth day of September, 1889, it would move the superior court to strike out the complaint and dismiss the action; that on the tenth day of September, 1889, the court extended the time for the defendant to demur or answer twenty days from that date; that on the 30th of September the court granted the defendant a further extension of time within which to answer, namely, until ten days after the decis *644 ion of said defendant’s motion to dismiss the action; that said orders were made on ex parte application, and without the consent of the plaintiff therein; that on the fourteenth day of October, 1889, no answer or demurrer having been filed by the defendant therein, the plaintiff, petitioner herein, filed proof of service of…

I dissent. The rule in this case will so limit the power of the court as to interfere very injuriously with the orderly and proper dispatch of the business. Why should the defendant be compelled to file his answer until the motion to strike out the complaint and dismiss the action is passed on? Non constat that he may be ever called on to answer. The court may dismiss the action by granting his motion, and the labor and expense of preparing an answer might thus be avoided. In my judgment, section 1054 of the Code of Civil Procedure has no application to the case presented here. It only applies to the case where the court makes such an order when there is no ease or preceding pending in his court which authorizes the court to exercise its discretion in granting time. The statute never was intended to limit the discretion of a court to the extent ruled in this case.

I am of the opinion that the court had ample power and jurisdiction to make the orders attacked in this case.