Billings v. Palmer

SMITH, J.

The case is: The plaintiff under an order allowing him to file an amended complaint delivered a copy of the proposed complaint to defendant’s attorney, who indorsed

[433]

thereon: “Received copy of the within amended complaint this twelfth day of October, 1904,” with his signature; and the complaint was filed on October 13th. Counting the time from the latter date, the tenth day would fall on October 23d, which was Sunday, and the defendant would have the whole of the 24th on which to file his answer. But the plaintiff, without awaiting the expiration of the time, caused default and judgment thereon to be entered by the clerk on that day. This judgment and default was afterward set aside on the motion of the defendant, on the ground that the clerk had no jurisdiction to enter the same; and the contention of appellant is that in this the court erred. But this contention, we think, is obviously untenable. “The service of an amended complaint,” as required by sections 432 and 472 of the Code of Civil Procedure,

ex vi termini,

implies the filing of the pleading; for, until then, there is no amended complaint and there can be no service of it. Regularly, therefore, the service should follow or be contemporaneous with the filing.

(Galliano v.Kilfoy,

94 Cal. 88, [29 Pac. 416].) And though, as is claimed by the "appellant, it be the custom among lawyers to deliver the copy prior to the filing, and this may be taken as sufficient where the complaint is afterward filed, yet until then there is no service.

(Coker

v.

Superior Court,

58 Cal. 178.) The default and judgment were therefore prematurely entered.

The order appealed from is affirmed.

Gray, P. J., and Allen, J., concurred.