Timmons v. Coonley

MYERS, J.,

pro

tem.

This is an action of unlawful detainer after default in payment of rent and the service of a three days’ notice to pay rent or quit. Defendant takes this appeal, first, from an order entered January 19,1915, denying defendant’s motion to vacate the entry of her default and permit the filing of an answer; second, from the judgment entered against her January 22, 1915; third, from an order entered January 26, 1915, denying her motion for a default judgment against the plaintiff on her cross-complaint.

The appeal from the order denying defendant’s motion to vacate the default cannot he here considered for two reasons: 1. Being an order made before judgment, it was not an appealable order. (Code Civ. Proc., sec. 963.) 2. Ño copy

of the order attempted to be appealed from is in the record. (Code Civ. Proc., sec. 951.)

The judgment appealed from is a judgment by default for failure to answer after an order overruling defendant’s de

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murror to the complaint. The demurrer to the third amended complaint was overruled January 11, 1915, and defendant given three days to answer. No written notice thereof was served or filed and there was no express waiver of such notice. On January 14tli the parties, through their attorneys, stipulated “that the defendant have to and including Saturday, January 16, 1915, in which to serve and file her answer and cross-complaint.” Said stipulation was filed January 15th. On January 16th a copy of the answer and cross-complaint was served on counsel for plaintiff, but not filed. On Monday, January 18th, the clerk entered defendant’s default pursuant to an order therefor made by the presiding judge. Later, on the same day, the defendant tendered to the clerk, for filing, her answer and cross-complaint, which were refused. Thereupon, upon the same day, the defendant served and filed her notice of motion to set aside the entry of default, which motion is asserted by counsel to have been heard and denied on January 19th; but, as stated above, no such order appears in the transcript. Thereafter the judgment here appealed from was signed and filed January 21 and entered January 22, 1915.