Five States Timber Co. v. Dwinnell

FINCH, P. J.

This is an appeal from an order refusing to vacate a judgment for defendant.

[114]

The original complaint was filed June 14, 1920, and demurrer thereto was sustained September 25th. On November 6, 1920, by leave of the court an amended complaint was filed and on the same day defendant interposed his demurrer thereto. Without notice to the plaintiff or its counsel, the demurrer was placed on the law calendar to be heard November 20th and on that day, in the absence of plaintiff and its counsel, the demurrer was submitted without argument and was sustained by the court without granting leave to amend and judgment was thereupon entered in favor of defendant. On January 27, 1921, plaintiff filed notice of motion to vacate the judgment on the ground that the plaintiff had no notice of the hearing. Attached to the notice was the affidavit of plaintiff’s counsel reciting the foregoing facts and stating that affiant had no notice of the placing of the demurrer on the calendar or of the action of the court thereon prior to January 22, 1921; that affiant’s office at all times mentioned was in the city of Sacramento, and “that affiant believes that plaintiff herein has a good and valid and sufficient cause of action as set forth in said amended complaint and affiant avers he would have appeared to defend said amended complaint if he had notice that said demurrer was set down for argument.” No counter-showing was made by the defendant. The court denied the motion.

[1]

Counsel for appellant argues that he was entited to notice of the time set for the hearing on the demurrer. Defendant replies that the court rules of Siskiyou County provide that Saturday of each week shall be law day on which all demurrers “shall be disposed of, unless -otherwise ordered by the court,” and that “parties shall be deemed to have notice that on law day, any demurrer that has been on file for five days prior thereto, will be argued and submitted for decision.” The court rules have not been made a part of the record and therefore cannot be considered.

(Johnston

v.

Callahan,

146 Cal. 212, [79 Pac. 870].) It must be assumed in support of the judgment, however, that there was no court rule requiring notice of the hearing on the demurrer, and the question of right to notice must be determined in accordance with the provisions of section 594 of the Code of Civil Procedure, which reads as follows: “Either party may bring an issue to