Baxter v. Boston-Pacific Oil Co.

KOFORD, P. J.

When the demurrer to the complaint came on for hearing in the court below the point was raised that no certificate of counsel was attached to the demurrer as required by Rule 40 of the superior court of the city and county of San Francisco. The court thereupon granted defendant leave to file an amended demurrer. The amended demurrer was afterward filed containing the missing certificate. Thereafter a motion was made by plaintiff to strike

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the amended demurrer upon the ground that the filing of the same was without authority of law. This motion was denied. Thereafter the court heard the amended demurrer upon its merits and made its order sustaining the same without leave to amend. Judgment was entered for defendant. This appeal is from the order refusing to strike and from the judgment for defendant.

It is urged that a demurrer to a complaint is not a pleading and cannot be amended after issue joined. The case of

Hedges

v.

Dam,

72 Cal. 520 [14 Pac. 133], is relied on. That case, however, is authority to the contrary. It holds that a demurrer is a pleading which may be amended as of course under section 472 of the Code of Civil Procedure, before the trial of the issue of law thereon. If a demurrer is a pleading under section 472, which may be amended as of course, then it is also a pleading which, under section 473 of the Code of Civil Procedure, may be amended by leave of court as was done in this case. We think the amendment to the demurrer was properly allowed and that the motion to strike was properly denied. Pules of court are but a means to facilitate justice and should not be permitted to obstruct it.

(Pickett

v.

Wallace,

54 Cal. 147;

Sullivan

v.

Wallace,

73 Cal. 307 [14 Pac. 789].)