Hall v. Kerrigan

HARRISON, J.

The respondent filed a complaint in the justice’s court for the city and county of San Francisco against one Ernestine Kreling, claiming to recover certain moneys due her upon contract with said defendant, and the cause was assigned for hearing to the appellant, who was one of the justices of the peace for said city and county. The said Ernestine appeared in the action and filed a demurrer to the complaint. At the hearing upon the said demurrer, the parties appeared and argued the same, and upon its submission it was overruled. The defendant in said action did not answer the complaint forthwith upon the overruling of said demurrer, and the attorney for the plaintiff thereupon de

[5]

mandecl that judgment be rendered against her. The justice refused this demand, and made an order that she be allowed two days within which to answer the complaint, and postponed the trial for said period of two days. The said Ernestine filed and served her answer to the complaint upon the next day, and the same has since been on file in said justice’s court. On the same day that her answer was filed, but before the filing of the same, the plaintiff made the present application to the superior court for a writ of mandate commanding the respondent, as said justice of the peace, to render and enter judgment in her favor against the said Ernestine. At the hearing of said application, the superior court found the facts as aforesaid, and rendered its judgment, awarding a peremptory writ of mandate against the respondent as such justice of the peace, commanding him to enter judgment in said action in favor of the plaintiff. From'this judgment the present appeal has been taken.

It is contended by the appellant that, by reason of the order of the justice, allowing her two days within which to answer the complaint, she was not in default at the time the present action was commenced, and the plaintiff was therefore not entitled to have any judgment entered against her. The respondent, on the other hand, contends that the court had no power to make such order, and that upon the failure of the defendant to answer the complaint immediately upon the overruling of the demurrer, she was entitled, under the provision of section 871 of the Code of Civil Procedure, to have judgment entered in her favor.

Subdivision 2 of section 858 of the Code of Civil Procedure declares: “ If the demurrer to a complaint is overruled, the defendant may answer forthwith.”