Leavell v. Superior Court

BURNETT, J.

An action was originally commenced in the justice court of No. 10 township in Placer County by

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the Placer County Grower’s Canning Association against said Leavell to recover the amount of one call or installment alleged to be due upon a subscription to said association’s capital stock, and plaintiff therein recovered judgment for the sum of fifty dollars. Thereafter said defendant appealed to the superior court of said county upon questions of both law and fact. Afterward, by permission of said court, the plaintiff filed an amended complaint. To this a demurrer was interposed and also a motion to strike out portions of said complaint. The record shows that the demurrer and motion to strike out came on regularly for hearing on April 16, 1914, and were ordered submitted on briefs. The briefs were filed and, on July 21, following, the court filed its decision which, as far as is in point, was as follows: “No reason is apparent why the contract subscribed by the defendant should not be enforced according to its terms. The contract is plain, distinct, lawful and in every way enforceable according to its import. Let judgment be entered in conformity with the prayer of the complaint.” On the same day the judgment was entered as follows: “In accordance with and by virtue of an order made by this court in the above-entitled action on the 21st day of July, 1914, it is hereby ordered and adjudged that plaintiff, Placer County Growers’ Canning Association, do have and recover of and from defendant, Louis L. Leavell, the sum of fifty dollars, together with plaintiff’s costs and disbursements,” etc.

It is the contention of petitioner that respondent had no authority to render judgment on the merits without having disposed of the demurrer. It is not disputed that the demurrer presented an issue of law which it was the duty of the court to determine and,that the adjudication of that issue was a jurisdictional prerequisite to the determination of the cause upon its merits. It is, however, the claim of respondent that the order made by the court was in effect an order overruling the demurrer and denying defendant permission to answer and therefore within its jurisdiction.

That a superior court has legal authority to deny a defendant the privilege to file an answer after he has interposed a demurrer and it has been overruled, cannot be disputed. Section 472 of the Code of Civil Procedure provides that “when the demurrer to a complaint is overruled and there is no answer filed, the court may, upon such terms as may be just,