People v. Rains
Before: Crocker
Synopsis
When a default has been, entered for a failure to answer or demur, an affidavit by the attorney that he had prepared a demurrer, but failed to file it in time, in consequence of a mistake on his part as to the day on which the time for filing would expire, is insufficient to open the default.
On application to set aside a default, it is necessary for the defendant to show that he has a good defense on the merits. Where the affidavit shows that the defense rests on matters appearing on the face of the complaint, it shows that the defense is of a technical character, and is therefore insufficient.
When a complaint contains the substantial averments of a cause of action, though defective in form and certainty, the defect is cured by a verdict or default.
Since the passage of the Act of 1861 an Assessor is only required to assess improvements on real estate and personal property in general terms and under a gross valuation, and a specific description of such property is unnecessary.
When a demurrer is overruled, with leave to answer, it is not necessary that the order fix the time within which the answer must be filed. The Court has power to fix such time for answering as it may deem proper; but where no time is fixed, the defendant should answer within the same time as in case of service of a copy of the original complaint.
Opinion — Crocker
Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
[129]This is an action to recover delinquent taxes. The defendants appeared and demurred to the original complaint; their demurrer was sustained, and leave granted to the plaintiff to amend the complaint. An amended complaint was duly filed and served; but the defendants failing to plead thereto within ten days, a default was duly entered, with a final judgment for the amount claimed in the complaint. The defendants came in and moved the Court to set aside the default and judgment, which motion was denied, and they then appealed therefrom to this Court.
It appears that the attorneys of the defendants had prepared a demurrer to file to the amended complaint, but they failed to file it in time, in consequence of a mistake on their part as to the day on which the time for filing would expire—they, by a miscalculation of time, supposing that the time would not expire until the day after it did. In the affidavit on which the motion was founded, and which was sworn to by one of the attorneys of the defendants, he says that after a careful examination the attorneys for the defendants are of the opinion that they have a good legal defense to the complaint, as the same appears upon the face thereof. The facts set forth in excuse of the failure to plead in time are insufficient. (Elliot v. Shaw, 16 Cal. 377.) It was also necessary for the defendants to show that they had a good defense to the action, on the merits, to entitle them to an order setting aside the judgment and default. (Gregory v. Ford, 14 Cal. 141; Gibbons v. Scott, 15 Id. 284; Logan v. Hillegass, 16 Id. 200; Woodward v. Backus, 20 Id. 137.) The statement that their defense depends upon matters appearing upon the face of the amended complaint shows that their defense is of a technical character, not affecting the merits of the action, and it was therefore insufficient, and there was no error in refusing the motion.
The next error assigned is, that the amended complaint does not state facts sufficient to constitute a cause of action, in this, that there is no detailed specific description of the improvements on real estate and personal property assessed to the defendants. The real estate is described fully, and then follow these words: “ and also the improvements theréonand in another portion of the complaint it is averred that there was duly assessed to the defendant,
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