Stevens v. Ross

By the Court,

Bennett, J. Suit on a promissory note. The complaint was filed in the court of First Instance of the district of San Francisco, on the 16th clay of April last. The summons was returnable on the 22d, and an answer was filed on the 24th clay of April. The proceedings were transferred into the district court under the act of Feb. 28th, 1850, previous to the filing of the answer. On the 27th clay of April, the plaintiff’s attorney presented an affidavit made by himself to the district court, setting forth that there had been no appearance on the part of the defendant, and no answer filed on the return day of the summons, and that as deponent was about proceeding to the court house, on such return day, for the purpose of entering up judgment by default, he was met by the defendant, who stated to him that he had no defence to make to the action, that the debt was justly due and owing, and that, in order to save further expense, if the plaintiff would not enter up judgment before the 25th day of April, he would pay the sum due on that day- - that defendant had since admitted that lie had directed his attorney to appear and plead, for the purpose of obtaining a further delay in making payment. Upon the facts presented by this affidavit, the court awarded judgment for the amount claimed by the plaintiff, and ordered the judgment to be entered nunc pro tuns as for the 22d clay of April. Upon this judgment an appeal is brought.

Section 29 of the act of Feb. 28, 1850, provides for the trans[96]fer of causes pending in courts of First Instance Into the district courts upon their organization ; and sec. 33 requires the district court into which any such suit shall be transferred, to proceed to hear, try, and determine it, “ in the same manner, with like “ effect, and subject to the same provisions of law” as if such suit had been originally commenced in the district court. This cause is one of the class provided for in these sections, and is, therefore, to he controlled by the provisions of the statute defining the practice of the district courts. That practice is laid dowm in the act to regulate proceedings in civil cases, &c., approved April 22, 1850. By section 125 of this act, if the defendant fails to appear and file his answer within a certain time after service of the summons, the plaintiff may take judgment by default against him; by see. 127, the default can be entered only in open court; and by sec. 128, if, within three days after the default has been entered, the defendant neither appears nor files his answer, the judgment by default may be made final upon proof by the plaintiff of his demand. Section 130 then declares that “ If the defendant, before or on the day when final “ judgment was to have been rendered against him, appear and “ file his answer, the judgment, if taken, shall be set aside, and “ he may file an answer at any time before the judgment is “ made final.” From the above sections of the statute, it appears that, notwithstanding the 24th and 39th sections require the answer to be filed within a limited time after service of the summons, the defendant may yet put in an answer at any time before final judgment, even after his default has been entered, and without application to the court for that purpose. It does not appear from the record before ns that the default of the defendant was, at any time, entered ; and he had three clays after his default should be entered to file his answer. There can be no pretence that the default was taken until the 27th day of April, and before that day the answer of the defendant had been filed. The answer, therefore, was putin in time; an issue of fact was joined; and the practice, in proceeding to trial and judgment, should have been as laid down in the act of April 22.