Catanich v. Hayes

The judgment-roll here, and the judgment itself, show a demurrer was interposed to the complaint, and overruled, and [339]time given to answer, but fails to show that notice of overruling the demurrer was given to defendants. Proof, or admission of service of this notice, is as much a jurisdictional fact for proceedings in default as proof or admission of service of summons. (Code of Civil Procedure, N. S. secs. 476, 670.)

JV. Hamilton, for the Respondent.

The point made by appellants, that notice of overruling the demurrer was not served on the adverse party, does not appear on the face of the judgment-roll, and the notice is no part of the judgment-roll, so that, if true, it could not be considered on an appeal from the judgment only.

By the Court : The notice of the overruling of the demurrer to the complaint, if one was given, would not of itself form part of the judgment-roll ; and if a party desires to have it appear from the judgment-roll that such notice was or was not given, he may incorporate the fact in a bill of exceptions, and the bill will be included in the judgment-roll. The judgment before us recites that the time allowed by the Court for answering had expired; and the record being silent as to the time allowed therefor, as well as to the giving of notice of the overruling of the demurrer, it will be presumed, in support of the judgment, that the Court, before ordering entry of the judgment, had satisfactory evidence that the time for answering had expired.

Judgment affirmed. Remittitur forthwith.