Butler v. Robinson

California Court of Appeal Jan 15, 1926 No. Docket No. 4534.Published

Before: Craig

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Holding. The court held that a motion for a bill of particulars under section 454 of the Code of Civil Procedure is not equivalent to a demurrer and does not extend the time for a defendant to file an answer. Consequently, the trial court did not abuse its discretion in denying the motion to vacate the default judgment.

Issues

Whether a motion for a bill of particulars constitutes a demurrer that prevents the entry of a default judgment.
Whether a motion for a bill of particulars extends the time for a defendant to file an answer.
Whether the trial court abused its discretion in denying the motion to vacate the default judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This motion is in no sense a demurrer.”

“the serving of a demand for a bill of particulars did not of itself extend the time for answering.”

“The trial court’s action in denying the motion to vacate the judgment is affirmed.”

[224]

CRAIG, J.

The plaintiff brought an action in the superior court of this state against the appellant as executor of the estate of Ida Thomas, deceased, in which it was alleged, among other things, that “during the lifetime of the deceased the plaintiff rendered personal service to her and furnished her with board, room to live in, and with divers and sundry articles of medicine, all of the reasonable value of $2,035.20,” and “that during the lifetime of Ida Thomas, deceased, became indebted to the plaintiff for her care, room rent and attention,” in said sum. The complaint also contained an allegation that the deceased had promised to pay for the said board, room, and personal services. Thereafter the executor served and filed a motion “To require the plaintiff to set forth in her complaint the various dates when she claims that she rendered the personal service to the deceased during her lifetime, or that she furnish a bill of particulars of each of such items, or that she file an amended complaint, and attach to the complaint, by way of exhibit, a true copy of the claims which it is alleged therein, she caused to be filed with the said executor, and that if more than one claim was filed with the executor, to furnish a true copy of each thereof, and to file in the clerk’s office true copies of the said cause thereof as a part of the said complaint. ’ ’

“2. To set forth in said complaint the facts of the promise on the part of the deceased to pay for her board and other personal service, which is mentioned in paragraph 3 of the complaint, and to state whether or not the said promise to pay was oral or in writing, and to give fully the terms thereof, and the date when made, and to whom made, so that this defendant may tender an issue with reference thereto, in his answer to the complaint.”

The hearing of this motion was regularly placed on the calendar of the court for February 21, 1923. At that time the attorneys did not appear, and the motion was removed from the calendar. Thereafter the clerk, on request of the attorney for the plaintiff, entered a default upon which judgment was thereafter rendered as prayed for in the complaint. Soon after this the executor made a motion to vacate the judgment and set aside the default. This motion was based upon the files and records in the case, and affi

Butler v. Robinson

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CRAIG, J.

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