Evans v. Superior Court

California Court of Appeal Jun 24, 1936 No. Civ. 11055Published

Before: McComb

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Holding. The court held that the term "answer" as used in section 581a of the Code of Civil Procedure includes a demurrer, meaning the filing of a demurrer prevents the mandatory dismissal of an action for failure to enter judgment within three years.

Issues

Is a demurrer an "answer" within the meaning of the word "answer" as used in the second paragraph of section 581a of the Code of Civil Procedure?

Disposition. Petition denied and alternative writ dismissed.

Quotations verified verbatim against the opinion

“We are of the opinion that the word “answer” in the second paragraph of section 581a of the Code of Civil Procedure should be construed as including a demurrer.”

“The generic construction placed upon the word “answer” by our Supreme and Appellate Courts in the cases mentioned, supra, is the interpretation which should be given to the word “answer” in section 581a of the Code of Civil Procedure.”

McCOMB, J.,

pro tem.

Petitioners seek a writ of mandate to compel respondent to dismiss a certain action entitled

L. H. Booker et al.

Hugh Evans & Co., a Corporation, et al.,

said action being No. 336380 in the files of respondent court.

The essential facts are undisputed. The action was filed March 3, 1932, and summons issued. March 18, 1932, a demurrer was filed to the complaint. March 24, 1932, the demurrer was overruled and defendants allowed fifteen days to answer. April 4, 1934, plaintiffs were granted permission to file an amended complaint. All defendants filed demurrers to the amended complaint. June 14, 1934, the demurrers to the complaint were sustained and plaintiffs allowed thirty days in which to file an amended complaint. April 13, 1935, plaintiffs’ second amended complaint was duly served and filed. Defendants filed demurrers to the second amended complaint and on September 11, 1935, the demurrers were sustained and plaintiffs allowed thirty days in which to file a third amended complaint. October 31, 1935, plaintiffs filed their third amended complaint. Thereafter on December 20, 1935, the demurrers of defendants to the third amended complaint were sustained and plaintiffs granted leave to file a fourth amended complaint. • April 9, 1936, plaintiffs filed a fourth amended complaint.

May 7, 1936, pursuant to notice duly served and filed, defendants moved to. dismiss the action on the ground that section 581a of the Code of Civil Procedure had not been com

[745]

plied with, in that, no answer having been filed, plaintiff had failed for more than three years after service of summons to have a judgment entered. This motion was denied.

This is the sole question presented for our determination:

Is a demurrer an “answer” within the meaning of the ivord “answer” as used in the second paragraph of section 581a of the Code of Civil Procedure?

We are of the opinion that the word “answer” in the second paragraph of section 581a of the Code of Civil Procedure should be construed as including a demurrer. The second paragraph of section 581a reads:

Evans v. Superior Court

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L. H. Booker et al.

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