Prouty

This is the second appeal in this cause: Prouty v. Adams, 141 Cal. 304 , 74 Pac. 845 . The facts are fully stated in the decision upon such former appeal. It was there held that the rights of the defendants were limited by a written contract of indemnity executed contemporaneously with the execution of the note sued upon, and that no defense at variance with the terms of that indemnity could be interposed. The judgment and order denying a new trial were there reversed, “with directions to the trial court to strike out or otherwise refuse to entertain the special defense above adverted to.” Upon the going down of the remittitur, the trial court made the following order: ‘ ‘ On motion of Avery C. White, Esq., counsel for defendants, the court made an order striking out the amended answer of defendants herein, according to the directions of the supreme court, and granted defendants fifteen days in which to file an amended answer herein.” Thereafter, and within the *242 time so granted, the defendants filed an answer wherein all mention of the written contract of indemnity was omitted, and the self-same special defense included in the order of the supreme court, and mentioned and…